Ayn Traylor Sadberry, British Columbia Court of Appeal rules that, since separated mother and children have become habitual residents of Province ...

Ayn Traylor Sadberry, British Columbia Court of Appeal rules that, since separated mother and children have become habitual residents of Province, chambers judge erred in declining to exercise its jurisdiction in favor of father’s prior suit in state court of Washington which had already addressed several issues of custody and parentage while family were living there

A judge of the Superior Court of the State of Washington entered an order in December 2003 entitled: “Varying the Order Determining Parentage; the Order of Child Support; and the Parenting Plan Order” with respect to the twin sons of Ms. DPC and Mr. RBL. The boys are now almost five years old. They were born in Spokane, Washington and had been living there with DPC in southeastern Washington. Their father was residing in Spokane and carrying out his rights of access to them from there.

In May 2002, however, shortly after RBL had served her with additional Superior Court documents, DPC took the twins back to Victoria, British Columbia to live where she had grown up. RBL claims that the move took place without his knowledge or consent.

The following month, DPC moved unsuccessfully to have the Washington court decline jurisdiction. Instead, that Court issued a temporary Parenting Plan Order in August. Later that year, a so-called guardian ad litem or “GAL” Report was prepared. In December 2003, the Washington Court issued its final Parenting Plan Order (PPO), detailing the dates and times of RBL’s access. According to DPC’s affidavit, the parties generally complied with this Plan for the six months ending in July 2004.

At that point, DPC had RBL served with a petition out of the Supreme Court of British Columbia. DPC’s attached affidavit brought up various new and unresolved issues. These included allegations of sexual activity between the twins and a slightly older boy, who is the son of a woman with whom RBL is now living. The affidavit also averred that, since early 2004, the twins were manifesting severe stress reactions. Finally, the petition called for a thorough investigation of the children’s statements and physical symptoms. RBL vigorously contested these claims.

The threshold questions for the B.C. judge was whether his Court had jurisdiction and, if so, whether he should exercise it. He found first that the children were now habitually residing in British Columbia and that this accorded jurisdiction to the B.C. court. Neither side challenged this ruling . Nor did either party object to the court’s statement that, under Canadian law, the governing principle is the children’s best interest.

The Chambers judge then considered whether the Court should exercise, or decline to exercise, its jurisdiction. He took into account the history of the parties; the connection of the parties with the jurisdiction in question; the availability of witnesses who may be of assistance to either party, where they are located and if they have to travel, whether it is a matter of great significance, along with the factors of time and expense. In a case of this kind, one element is which jurisdiction has the greater number of concerned family members. Finally, the court should weigh the general links of the parties to the present forum.

The Chambers judge decided that, since the Washington GAL Report was relatively recent and had resulted from an “extensive investigation”, and since the newer report did “not create a problem in terms of access to the respondent”, the Washington court should retain jurisdiction. DPC appealed.

Before the B.C. Court of Appeal, DPC argued, citing B.C.’s Family Relations Act Section 44 (FRA), that, if a child habitually resides in the Province, the court must take jurisdiction. The Court unanimously allows the appeal.

“The fact remains that even where the court has jurisdiction, it may, as [FRA] Section 46 provides, decline to exercise it where ‘it is more appropriate for jurisdiction to be exercised outside B.C.’. The question for us is whether the Chambers judge erred in concluding that it was more appropriate in this case.” [¶ 7]

“..., I am of the view that he did err in proceeding on the basis that an extensive investigation had been held in Washington when in fact the ‘new matters’ were not even hinted at, at that time; and in concluding that the question of access would more appropriately be dealt with in future by the Washington court. In doing so he appears, with respect, to have considered some of the merits of the case when the only question was jurisdiction.”

“Greater weight should have been given to the fact that the children, their mother and her extended family are in British Columbia, the children’s health care professionals are here, and the new matters were not resolved by the psychologist’s report that was prepared at the mother’s behest. Any custody and access report must, ... be based on interviews with both parents (and of course the children) and provide the Court with a complete picture of how the children’s emotional health has, or has not, been affected by the existing custody and access arrangements and, more importantly, what custody and access arrangements are in their best interests here and now.” [¶ 8]

“If the arrangements ordered by the Washington court turn out to be suitable after the changes in circumstances have been fully considered, then I am sure a British Columbia court will so rule. However, the matters that have been raised do require investigation, ... for the purpose of ensuring that the children’s best interests are being met. The children now reside here, and, subject to the ultimate court order, will continue to reside here.”

“In my view, it is not appropriate that the Washington Court retain jurisdiction and, conversely, it is appropriate that British Columbia exercise its jurisdiction and responsibility to the children. For these reasons, I would set aside the order of the Chambers judge, allow the appeal, and order that the petition be heard in the Supreme Court of British Columbia.” [¶ 9-10]

Citation: D.P.C. v. R.B.L., [2005] B.C.J. No. 2250; 2005 B.C.C.A. 497 (Sept. 27).

 


*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com

Ayn Traylor-Sadberry, Where Irish applicant married Irish man in Ireland based on his fraudulent representations as to validity of his Ohio divorce ...

Where Irish applicant married Irish man in Ireland based on his fraudulent representations as to validity of his Ohio divorce from another, Irish Supreme Court rules that applicant for separation and benefits cannot invoke equitable estoppel to prevent wrongdoer from challenging their invalid marriage but two Justices suggest other civil remedies she might have against wrongdoer under facts found by lower court

In 1968, the first respondent (Mr. R) married the notice party (Ms. N) in Dublin. Both were citizens and residents of the Irish Republic where the marriage took place. One child was born of this marriage. About four years later, the marriage broke up and the parties thereafter lived apart with N economically self-sufficient.

R later met and worked with the applicant (Ms. A) and fell in love with her. He was anxious to marry A and therefore wanted to end his Irish marriage to N. In 1982, while in Ohio on one of several short training trips to his Irish company’s parent, an attorney acquaintance offered to obtain R an Ohio divorce from N. Based on false information that R had an Ohio residence and spent much time in the State, R secured a divorce from the Ohio court. N did get notice of the Ohio proceedings but saw no reason to take part in them or to ask for maintenance, or to have any further dealings with R.

A believed that the Ohio divorce was valid and that R was now free to marry her. When R tried to arrange a registry office marriage in England, however, this office told R that the English registrar general could not recognize the purported Ohio divorce.

In March, 1983, A and R were married at the registry office in Dublin. At no time did R tell A (or the Irish registrar) the unvarnished truth about the Ohio decree. The application to the registrar asserted that R was single. Thereafter, R and A lived together as husband and wife for about seventeen years and had two children. The relationship between the parties later fell apart.

A then issued a family law civil bill in an Irish Circuit Court seeking a judicial separation and ancillary forms of relief. In his defense and counterclaim, R asked (1) for a declaration pursuant to Section 29(1) of the Family Law Act of 1995 that the divorce obtained by him from the court in Ohio was invalid and (2) for a declaration that the purported marriage entered into between himself and A was therefore null and void.

When the matter came before the Circuit Court, the trial judge directed that, as a preliminary issue, there should be a hearing as to whether the Ohio divorce had been valid. A argued, inter alia, that, given the length of the marriage, and R’s fraud as to the Ohio divorce, the court ought to equitably estop R from attacking its validity. She urged that the court could only do justice in the case by barring R’s challenge to her marriage to R.

The Circuit Court found that A was not aware of any problem with the alleged divorce. Based on her reading of what seemed, on its face, to be a judicially approved Ohio decree, A honestly believed that the Ohio divorce was fully effective at the time she married R.

The Circuit Court was inclined to agree with A that estoppel might be the only way to bring some sort of justice to her situation. Pursuant to Irish procedure, however, the Circuit Court Judge decided to refer the following legal question for the opinion of the Supreme Court: “Am I entitled to hold in these proceedings as a matter of law, having regard to the findings of facts made by me, that [R] is estopped from denying that he is married to [A]?” The Supreme Court of Ireland unanimously answers in the negative, with several opinions.

All the Justices seem to agree that the Court’s ruling in Gaffney v. Gaffney [1975] I. R. 133 has laid down the relevant law.. “Thus, arising from Gaffney ... and subsequent decisions of this Court, the law is well established that estoppel may not be used to change a person’s status when that has not occurred, [or] to prevent a party [from] demonstrating that a foreign divorce decree was given without jurisdiction. Therefore, unless Gaffney v. Gaffney is overruled by this court it is a governing authority on this issue.” [¶ 19] This appears to preclude A from having R estopped from showing that he had fraudulently gotten a foreign divorce decree from a court without jurisdiction.

Noting that divorce was unavailable under Irish law until 1996, the Court then examines the viability of Gaffney in today’s world. “A decision of the full Supreme Court ... , given in a fully‑argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice.”

“However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous . . . Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies.” [¶ 31]

Moreover, allowing the use of estoppel in suits relating to marital status would generate both theoretical and practical anomalies and problems. For example, it would mean that the Irish courts could end up treating people as married for some purposes but not for others.

“The possible effect of the use of an estoppel is highlighted by the potential order of the Circuit Court should estoppel be used. First, there would be a decree based on judicial separation (which is a decree grounded on the parties being spouses) which would be based on the use of estoppel. Yet, on the counterclaim, there would be a decree of nullity, which is grounded on the parties not being spouses. Both these orders would relate to the same ‘marriage’. Thus, the one order would have separate portions effectively recognising a different status for the parties.” [¶ 34]

Here, the case rested on the issue of A’s marriage to R. As precedent and policy dictate, A may not rely on estoppel to prevent a court from recognizing and relying up R’s true legal status as invalidly divorced from N.

Nor is A’s argument persuasive that the case involves purely private arrangements between A and R. On the contrary, a judicial ruling on matrimonial status, such as a decree of divorce, addresses the public at large and is a decision in rem. In addition, many of the financial and property provisions ancillary to a decree may concern third parties such as pension trustees as well as public bodies such as the Land Registry or the Revenue Commissioners.

Justice John Murray (formerly a member of the European Court of Justice), agrees with his colleagues that the governing precedent is Gaffney v. Gaffney [1975] I. R. 133, 152. He quotes a key passage from that opinion:

“The plaintiff was either his wife or she was not. Apart from other legal incidents in this country, certain constitutional rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot, therefore, by any rules of evidence be left in a position of doubt nor could the Courts countenance a doctrine of estoppel if such existed, which had the effect that a person would be estopped from saying that he or she is the husband or wife, as the case may be, of another party when in law the person making the claim has that status.”

In obiter dicta concurred in by Justice McCracken, Justice Murray looks at possible alternative legal remedies which A might pursue to right the wrong done to her by R’s deceptions. “In a society based on the rule of law it would certainly be a major gap in its fabric if persons who have been wronged in the manner in which [A] has been in this case were to be left without remedy. In such a society, the system of law is intended to be complete, that is to say that within its framework it provides, in principle, a remedy for any denial of rights conferred by law or its constitution (the extent of the remedy may be constrained by public policy considerations in the interests of the common good or, where the right is conferred by law, by the limited nature of the right, but none of these extra considerations seem to me to arise in this context). Either [A] has some remedy against [R] or she has not.” [¶ 74]

“If the law permitted a person to induce, by deceit or fraudulent misrepresentation, another to enter into an otherwise lawful marriage and, after many years of ostensible marriage, to cut himself adrift without any obligation to the other person, it would in my view undermine the status of the marriage contract itself and the constitutional rights which that person was entitled to have protected by virtue of that status. A prosecution for bigamy where a person enters into a second marriage in the full knowledge that a first marriage is valid and subsisting may be a means of protecting the public interest but it is not a remedy which vindicates or protects the rights of the injured party.”

“A declaration as to status can afford protection to the legitimate spouse of the first marriage. In my view it is a direct attack on the constitutional rights of a person for another to induce them or cause them to enter into a duly solemnised marriage contract by deceit when the latter knows that he lacks the capacity to enter into a valid marriage by reason of a pre‑existing and subsisting marriage.” [¶ 83]

“For the purposes of this case stated, on the basis of the facts as found by the Circuit Court Judge, I am quite satisfied that [A] would have a remedy in law for actionable deceit grounded on the fraudulent misrepresentations of [R]. I emphasise that this is based on the facts as found by the Circuit Court Judge in the proceedings before him because, should [A] initiate other proceedings against [R], the onus would be on her, in the ordinary way, to establish the necessary facts entitling her to any relief claimed.” [¶¶ 94-95]

“It seems to me that in any action for deceit based on the kind of facts which have been found by the Circuit Court Judge in these proceedings, a court would be entitled, in awarding damages, to take into account the statutory and other entitlements of a plaintiff who was separated from her ostensible husband and to which she would have been so entitled if in fact there had been a valid marriage.” [¶ 98]

“It has not been relevant to consider whether any conduct of [R] as found by the Circuit Court Judge could amount to a breach of the criminal law. The Circuit Court still has seisin of the final determination of this case and it is in my view a matter for the Circuit Court Judge whether, in the exercise of his discretion, he considers there are any grounds for directing that the papers in this case be sent to the Director of Public Prosecutions.” [¶ 104]

Citation: C.K. v. J.K. and Attorney General et al., [2004] I.E.S.C. 21, [2004] 1 I.R. 224 (Sup. Ct. Ireland).

 


*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: http://www.TraylorSadberry.com

Ayn Traylor-Sadberry, In the context of a criminal trial of supporters of allegedly terrorist organization in Somalia ...

In the context of a criminal trial of supporters of allegedly terrorist organization in Somalia, Eighth Circuit considers whether the Secretary of State’s designation of a foreign organization as a “terrorist organization” violates due process

Amina Farah Ali and Hawo Mohamed Hassan, both from Somalia, are United States naturalized citizens living in Minnesota. In February 2008, the Secretary of State designated al Shabaab as a foreign terrorist organization. That same year, the FBI learned that Ali had contacted members of al Shabaab. Both Ali and Hassan were criminally charged.

During the ten-day trial in 2011, the jury learned about the history of Somalia and the goal of al Shabaab “to impose [its] version of Islamic law on Somalia”, as explained by the expert witness, Matthew Bryden. 

The Government presented evidence that Ali and Hassan planned and participated in fundraising teleconferences in which a speaker would give a lecture; that Hassan kept track of the donors’ phone numbers; that Ali spoke with Hassan Afgoye, who at one time was responsible for al Shabaab’s finances, and discussed money that she arranged to be sent to him or to his associates; that Ali also spoke with Agoye about the activities of al Shabaab in Somalia, and was happy to learn that enemies were killed; and that Hassan spoke with members of al Shabaab and he was happy to hear about the killings carried out by this group. Furthermore, the Government presented evidence of Ali’s and Hassan’s connection with groups both inside and outside of Somalia, and with terrorists such as Hassan Dahir Aweys, and demonstrated that al Shabaab had connections to al Qaeda. The Government further presented evidence related to two false-statement counts against Hassan which were related to statements made in 2009 to an FBI agent that Ali did not know anyone who sent money to al Shabaab and similar groups; nor that Ali had ever asked that money be sent to Somalia or elsewhere through a “hawala” (an informal value transfer system based on the performance and honor of a network of money brokers).

In their closing arguments, Ali and Hassan defended their actions as an intention to provide humanitarian relief to Somalia. The jury returned a guilty verdict on all counts. The district court sentenced Ali to 240 months in prison and Hassan to 120 months in prison. Both Ali and Hassan appealed.

The United States Court of Appeals for the Eighth Circuit affirms the district court’s decision.

In a de novo review, the Court decides the issue raised by Ali and Hassan on whether the designation of a foreign organization as a terrorist organization by the Secretary of State violates their due process.

First, Ali and Hassan claimed that their material-support convictions violate the Due Process Clause of the Fifth Amendment.

“As relevant here, the material-support statute forbids ‘knowingly provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so.’ 18 U.S.C. § 2339B(a)(1). The phrase ‘foreign terrorist organization’ is a term of art that is defined in 8 U.S.C. § 1189(a)(1). Under this provision, the Secretary of State may designate an organization a foreign terrorist organization if the Secretary finds that (1) the organization is a ‘foreign organization’; (2) the organization engages in ‘terrorist activity’ or ‘terrorism’ or ‘retains the capability and intent to engage in terrorist activity or terrorism’; and (3) ‘the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.’ Id. Section 1189 also provides a mechanism by which an organization can seek judicial review of its designation as a foreign terrorist organization in the United States Court of Appeals for the District of Columbia Circuit. Id. § 1189(c)(1). However, this ability to challenge a designation belongs to the organization, not a defendant in a criminal proceeding. Id. § 1189(a)(8).”

Second, Ali and Hassan argued that prohibiting them from challenging the Secretary of State’s designation of al Shabaab as a foreign terrorist organization also offends due process.

“[…]For purposes of the Due Process Clause, the Supreme Court has stated that ‘in determining what facts must be proved beyond a reasonable doubt the . . . legislature’s definition of the elements of the offense is usually dispositive.’ McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). Under 18 U.S.C. § 2339B, ‘Congress has provided that the fact of an organization’s designation as [a foreign terrorist organization] is an element of [the crime], but the validity of the designation is not.’ Hammoud, 381 F.3d at 331. Thus, like our sister circuits, we hold that it comports with due process to prohibit a criminal defendant from challenging the validity of the Secretary of State’s designation of a foreign terrorist organization. See id.; Afshari, 426 F.3d at 1155-59. In reaching this conclusion, we note that an organization’s designation as a foreign terrorist organization is not wholly immune from challenge. The statute provides a method by which an organization, rather than a criminal defendant, can contest the Secretary of State’s designation. 8 U.S.C. § 1189(c); see Lewis v. United States, 445 U.S. 55, 65-67 (1980).”

The Court also rejects Ali’s and Hassan’s argument that allowing the Secretary of State to designate foreign terrorist organizations amounts to an unconstitutional delegation of legislative power.

“The longstanding rule is that ‘Congress may delegate its legislative power if it `lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’ South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 795 (8th Cir. 2005) (alterations in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Congress has ‘wide latitude in meeting the intelligible principle requirement . . . [because] `Congress simply cannot do its job absent an ability to delegate power under broad general directives.’ Id. (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). ‘Congress fails to give sufficient guidance in its delegations only if it `would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.’ Id. at 796 (quoting Yakus v. United States, 321 U.S. 414, 426 (1944)).”

“The statutory scheme governing the designation of foreign terrorist organizations provides an intelligible principle. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir. 2000) (explaining that § 1189(a) ‘does not grant the Secretary unfettered discretion in designating the groups to which giving material support is prohibited). […]As the Ninth Circuit has observed, ‘[t]he Secretary could not, under this standard, designate the International Red Cross or the International Olympic Committee as [foreign] terrorist organizations. Rather, the Secretary must have reasonable grounds to believe that an organization has engaged in terrorist acts—assassinations, bombings, hostage-taking and the like—before she can place it on the list.” Humanitarian Law Project, 205 F.3d at 1137.[…]”

Ali and Hassan also argued against the requirement that the Secretary of State determines that an organization “threatens the security of United States nationals or the national security of the United States.” 8 U.S.C. § 1189(a)(1)(C). Furthermore, they argued that the term “national security” is “defined without meanings.”

“[…] But the statute defines ‘national security’ to mean ‘the national defense, foreign relations, or economic interests of the United States.’ Id. § 1189(d)(2). That this definition is general and broad does not an unintelligible principle make. See South Dakota, 423 F.3d at 795. Moreover, ‘[t]he Supreme Court has repeatedly underscored that the intelligible principle standard is relaxed for delegations in fields in which the Executive traditionally has wielded its own power.’ Hepting v. AT&T Corp. (In re Nat’l Sec. Agency Telecomms. Records Litig.), 671 F.3d 881, 89798 (9th Cir. 2011) (collecting cases); see Zemel v. Rusk, 381 U.S. 1, 17 (1965) (‘Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than it customarily wields in domestic areas.’). For these reasons, we hold that granting the Secretary of State the ability to designate an organization a foreign terrorist organization does not constitute an unconstitutional delegation of legislative authority.”

The Court affirms district court’s decision. 

Citation: US v. Ali, 799 F.3d 1008 (8th Cir. 2015).

 


*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com