Sunday, November 11, 2012

The Delichte File: Anatomy of a Family Court Failure

Good Day Readers:

As you know, CyberSmokeBlog has been following Karyn L. Delichte versus Brendan N. Rogers in Manitoba's Court of Queen's Bench Family Division (File Number: FD04-01-73022). CSB's interest is threefold:

(1) It believes this case is a poster child/cause celebre for what's wrong with Family Court not only in Manitoba but in other jurisdictions such as Ontario, the United States, Australia, etcetera. All are in crisis mode requiring a major overhaul and rethinking rather than a mere tweaking

(2) The dimensions of this litigation are nothing short of staggering. Since its inception in March of 2004 no fewer than 11 Justices and 5 Masters have "touched" the file. To date there have been an incredible 400 court filings and 141 hearings listed as either "Pending" or "Adjourned"

(3) Mr. Brendan Rogers is represented by Jack King (Yes, that Jack King from Douglas Inquiry fame!) who continues to practice law under the firm name Petersen King

CyberSmokeBlog attended the latest hearing held Friday, November 9, 2012 at 10:00 a.m. in Courtroom 326 Justice Herbert Rempel presiding.
On December 2, 2011 when Herbert Rempel was appointed a Justice in the Manitoba Court of Queen's Bench he as a lawyer with Pullan Kammerloch Frolinger (Winnipeg) replacing Justice R. M. Diamond who elected to beccome a supernumary Judge.

He received a Bachelor of Bachelor of Arts Degree from the University of Winnipeg in 1984 and a Bachelor or Laws from the University of Manitoba (1987). The following year he was admitted to the Manitoba Bar.

Prior to his appointment Justice Rempel had been a solicitor with Pullan Kammerloch Frolinger since 2004, an Associate with Loewen Martens & Rempel from 1991-2003 and an attorney with Booth Dennchy (1988-1991. His main areas of practice included adoption, corporate and commercial law, wills, estates, as well as, civil litigation.

Herbert Rempel was a Member of the Estate Planning Council of Winnipeg, a Board Member of the Canada-Manitoba Bar Association and a Member of the Canadian Association of Farm Advisors. He serverd as a sessional lectruer in the Faculty of Law, University of Manitoba (1994-1996), as well as, a lecturer for educational seminars conducted by Adoption Options. In addition he has been a Board Member for numerous community organizations.

Mr. Rogers is a former Winnipeg Blue Bomber (linebacker 9 Canadian Football League seasons) who today is a Certified Financial Advisor for RBC in Winnipeg.
Karyn Delichte is from Winnipeg and currently a PhD student in Psychology at the California School of Professional Psychology.

Note: A special thank you to Anonymous who sent CyberSmokeBlog the photograph along with the Message, "I happen to know Ms Delichte and thought you might like this picture to include on your Blog. It has actually been retouched to conceal several darkened teeth she received when her former husband Brendan Rogers assaulted her during their relationship. Your readers might like to know a bit more about the subject of several of your postings."

Anonymous, you saved CSB a thousand words.

On November 9th of this year Brendan Rogers was in court represented by Jack King and Althea Wheeler both from Pertersen King while Karyn Delichte was, and has been for some time, self-represented.

The Arguments - Ms Delichte

Karyn Delichte began by noting she had not received attachments (Tabs) A to E inclusive of a submission filed earlier by Team King-Wheeler. From his reaction, it was clear, at least to CyberSmokeBlog, Justice Rempel was unmoved by the fact Ms Delighte lacked certain documentation. Further, the Plaintiff claimed when he adjourned the last teleconference hearing in June of this year he did not provide her with an opportunity to request a stay of the June 15 Court Order pending her appeal.

Said Order had been drafted by Ms Wheeler. Karyn Delichte further argued Althea Wheeler had previously drafted another Order approved by Justice Robert Doyle concerning a related matter which also contained an error. Not surprising, at least to CbyerSmokeBlog, that mistake was not in Karyn Delichte's favour either.

Ms Delichte maintained that the June 15, 2012 Order was not specific enough and when she asked Justice Rempel for clarification of Paragraph 6.4 he failed to directly respond to her or provide her with an explicit answer.

Paragraph 6.4 states:

The obligation of Brendan Noel Rogers to pay Karyn Lynne Delichte the additional sum of $1,873.08 per month for the special and extraordinary expenses for (Child 1)*, born April 26, 1997 and (Child 2)* born April 6, 2001 is terminated effective July 1, 2011 with full credit to Brendan Noel Rogers for any payment made following that date. (Italics bold emphasis ours)

* The names of the children appear in the original document. They have been removed by CyberSmokeBlog to protect their identities.

The Plaintiff maintained the provisions contained in Paragraph 6.4 were vague and unfair because a full credit was given to Mr. Rogers when the Court has already determined there was a substantial disparity in incomes between the parties that left her and the children with no support for almost a year.

CyberSmokeBlog couldn't help but notice Ms Delichte is living in the United States with her children following a Court of Appeal decision issued on June 27, 2011 permitting her to relocate with the children for the purpose of attending graduate school. CSB also questions why the Court did not give adequate consideration to the cost of her advanced education given it acknowledged she is there on a Student Visa which restricts her ability to work.

The decision of Justice Rempel, as least to CyberSmokeBlog, appears to ignore or display a a lack of concern for the fact the Plaintiff cannot simply start working to replace the income that, by virtue of Special and Extraordinary Expenses in the law covers extra-curricular needs, interests and consistent spending for the children.

Ms Delichte also questioned the Court about historical matters that related directly to the issue of support. She stated that when Brendan Rogers was in arrears on his child support payments, the Court permitted him to make a small monthly contribution of $500 to $1,000 over the course of several years rather than imposing a lump sum from which the children could have undoubtedly benefited.

In the current matter, Karyn Delichte may have touched on one of the the imbalances and double standards that plague Family Court as she is now ordered to pay a lump sum credit to Mr. Rogers while on a student budget. The Court did not appear interested in extending to her the same provisions it had previously made available to her former husband.

CyberSmokeBlog plans to further research the matter that initially went before Jusice Remple on June 15, 2012 because it would appear more detail is required.

In addition, Karyn Delichte argued given her circumstances the $500 in court costs requested by Jack King against her imposed an unfair burden since she's already living on a very limited student budget while raising their two children. She cited non-specific case law that Orders of Cost are generally frowned upon in Family Court because they take resources away from the family.

She then went on to clarify her position stating that any Order of Costs would be money taken directly from the children further speculating unless this was the Court's intent the Order would impede her ability to continue seeking justice for herself and her children. Ms Delichte pointed out Justice Donald Little had earlier warned Brendan Rogers that costs where a two-way street advising the Court when Mr. Rogers was driving intoxicated with one of their children in his car. She brought the matter to the Court's attention and costs were still levied against her - another matter of interest to CyberSmokeBlog it intends to examine in more detail by continuing to review Court records.

In effect, at the November 9th hearing the Court clawed back money that could be used to the benefit of the children and ordered her to pay $250 to Mr. Rogers. This appears somewhat surprising given Court records strongly suggest the Responent is much better financially positioned.

Finally, Ms Delichte maintained the conference call format was prejudicial to her ability to present the facts. Regardless of her unsuccessful request for a stay in implementing the Court Order of June 15th of this year she indicated she intends to appeal that Order.

The Arguments - The Court

As already noted, Justice Rempel was not prepared to consider a stay of the Court Order until Ms Delichte had filed a written Motion citing a letter from Aimee Fortier (Executive Assistant to the Chief Justice Queen's Bench/Chief Provincial Judge).dated September 24, 2012 advising her she had to file no later than 7-days before the November 9th hearing.

Ms Fortier's correspondence to Ms Delichte stated in part, "..... the filing of any material is to be done in the usual manner ....." which means the Petitioner would have had to return to Winnipeg as a self-represented litigant to have the Motion set down at a Tuesday Family Motions Court hearing.

From her arguments about disparity of the parties' respective incomes, it would seem logical that she would lack the financial ability to return for numerous Motions and hearings. It also seems that if he were to sign the Order, Justice Rempel would take Ms Delichte from a consistent amount of support to no support at all for her and the children. He formally signed two copies of the Order at the November 9th hearing.

There was another issue raised by Karyn Delichte that calls for further examination. She argued Jack King was essentially "judge shopping" to find a judge who was, to use Ms Delichte's words, "sympathetic" to Mr. Kings's client. She pointed out the matter of support had already been litigated and Brendan Rogers was deemed to make enough money to keep his payments consistent. If the Court is critical of parties who continue to litigate the same issues, why did Justice Rempel appear to be so disinterested in her argument?

The Arguments - CyberSmokeBlog

CSB is of the view given Ms Delichte's unique situation the Court has not been as accommodating as it should/could/ought to have been to this point.The assessment applies not only to Friday's session but also to an appeal hearing held October 26th of this year. The question then becomes does this unfairly disadvantage Karyn Delichte?

But one small example. It appears from the Court record that Ms Delichte requisitioned a Case Management Conference set for July of this year. Undoubtedly, this would have fallen during her summer vacation when classes are not in session. In a letter to Madam Justice McPhail filed with the court by Peterson King (Althea Wheeler) dated May 31, 2012 it states in part at Point 2:

"..... The Petitioner has been advised Mr. King is not available in July of 2012. Mr. King will be on medical leave in July of 2012 following surgery in June ....."

Had the Motion hearing been granted in July when school was recessed she would have not missed valuable class time and could have perhaps attended in person.
As you can clearly see from this Winnipeg Free Press photograph Mr. King was able to testify at the Douglas Inquiry on July 25 and 26 of this year.

At the November 9th hearing Justice Rempel would not accept an oral argument from Ms Delichte stating instead she has to submit a written Motion. CyberSmokeBlog fails to appreciate the rationale given a Court Recorder was in place. Such would required her to be there in person an a Tuesday when Family Motions Court is convened to have the matter simply set down.

Karyn Delichte has a practicum on Mondays and class on Tuesday's. Listening to His Hounour left the impression she had failed to complete a simple step. It is CSB's considered opinion from what it has witnessed to date Family Division is unreasonable, given her circumstances, in expecting her to follow unrealistic rigid rules and, therefore, these should not be applied religiously as has been the case.

Considering the financial implications gathered from Ms Delichte's arguments before the Court of Appeal (October 26, 2012), the costs associated with returning to Winnipeg for endless Court appearances on a file this size means she is forced to decide between paying for an airline ticked and textbooks.

Further, CyberSmokeBlog wonders why the Court of Appeal would permit her to relocate with her children for a PhD program if the lower Court is going to make it difficult for her to afford this education? If she is unable to pay for legal representation, why would the Court expect her to be financially capable of sustaining the travel schedule of an international executive?

It would seem there is no reason the Court could not and should not implement simple steps that would allow her to fully participate without jeopardizing the Respondent's case. Once the Court advised Ms Delichte she had to file her Motion and attend it's hearing in person, it occurred after her school semester had begun, thus, there was no way for her to be present. To receive certification from the American Psychological Association, she can simply not afford to miss any class time otherwise it would be academically suicidal. She has very little flexibility in that regard.

While it's well, good and fine to cite the letter of the law, what good is it if not tempered with flexibility where justified? Justice Robert Doyle had made such a concession at an earlier hearing. It sees from Ms Delichte's arguments that the letter of the law is a moving target one that is subject to judicial preference.
Recall Mr. Bumble's famous line from Charles Dickens' Oliver Twist who upon being told, "The law supposes that your wife acts under your direction" replied, "The law is an ass!"

Returning to CyberSmokeBlog's original premise, "Family Courts are in a crisis mode requiring a major overhaul and rethinking rather than a mere tweaking" -  Delichte versus Rogers is a poster child for what's wrong.

Sincerely,
Clare L. Pieuk

Postscript
  
Ms Delichte raised strong arguments that Family Court imposing costs on someone in her situation, given the financial disparity vis-a-vis the Respondent, was patently unfair only serving to further impact negatively and directly on the children. Wouldn't that make for a a fascinating Constitutional/Charter challenge?

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