Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 29, 2019 7 www.lawtimesnews.com COMMENT BY RYAN HANDL ARSKI MY favourite metaphor that I have ever heard to describe the law student experience from before law school to landing a job at a firm is from Peter Thiel, founder of eBay and one of the first investors in Facebook, fa- mous for giving Mark Zucker- berg a cheque for US$500,000 and, according to legend, saying (in somewhat different words), "Don't mess it up." Thiel attended Princeton for his undergraduate degree and law school and landed one of those plum, highly coveted jobs at a Wall Street law firm that would have fulfilled his parents' dreams. After 11 months, he quit. When Thiel explains his rea- soning for his decision to quit, he talked about his life up to that point being like a tournament. He had gone to high school and excelled and got into Princeton, winning phase one of the tour- nament. He excelled during his undergraduate degree and got into Princeton Law School, win- ning another phase of the tour- nament, and then he excelled at Princeton and got a job at a Wall Street firm, advancing again in the tournament. But when he looked around at the people in his firm and could begin to ap- proximate what his future would look like, he realized something that changed his life forever: The tournament that had dominated his life for so many years never ends. The Wall Street firm was just another phase of the tourna- ment where he would have to try to compete, advance and elim- inate yet more people. "Who would want to spend life this way?" he thought, so he quit. Other lawyers he knew who were so psychologically impris- oned by the tournament and the need to advance in it asked him how he did it. The question reveals more about the question- er and Thiel being right in his assessment of the law world as a tournament that never ends than it does about reality. He walked out the door, of course. What did Thiel do after leav- ing the law world? Putting aside specifics about what he did and how successful he became, the most important thing to keep in mind is that he did something new. He did something that no one had tried before. The story of eBay is a fascinating story in that it started with the trading of pez dispensers in an online community, something almost impossibly niche to imagine that it would ever develop into a profitable business. From the experience of how the business developed from a new, niche idea, Thiel developed a theory that the term "technology" should not be thought of as being necessarily to do with the ability to computer program or other technical ability but rather simply just the courage to try something new. Defined this way, absolutely everyone has technological ability. A lot of lawyers and law stu- dents feel unfulfilled because of a system that encourages people within it to copy something that has worked in the past. The tra- jectory of graduating law school, getting a job at a firm and trying to work your way up to become a partner is tried and true, they think. But the emphasis on fol- lowing traditional career paths and the systems in place in law school that inf luence students to compete with each other for jobs within traditional career paths, such as on-campus interviews and law firm recruiting, ignores another possibility that smart and creative students should be aware of and considering — the ability to create your own path within law. This possibility is very important for law students and young law- yers because not all lawyers want to leave the law world like Thiel, but many do want to escape the tournament that never ends. There is a category of young and entrepreneurial lawyers that law students should be taking note of because they chose to do something that had not been tried before. Glenford Jameson became a food lawyer. Camille Labchuk became an animal lawyer. Jack Lloyd and Caryma Sa'd became cannabis lawyers. Aaron Grinhaus became a cor- porate lawyer with an emphasis on crypto-currency legal issues. These areas of law did not exist even 10 years ago. These lawyers are thriving, precisely because they resisted the systems that are in place in law school that encouraged them to copy what others had done and opted in- stead for the opportunity and adventure of the clear blue sea. There are other young law- yers that are creating things that are new while still maintaining more of a traditional legal prac- tice. Sean Robichaud started a legal podcast (that I love). An- namaria Enenajor and Stephan- ie DiGiuseppe started Cannabis Amnesty, an advocacy organiz- ation devoted to pressuring the government to purge the records of Canadians with criminal rec- ords for possession of marijuana (long overdue). Gerald Chan and Nader Hasan wrote a book on digital privacy. If you are a law student who is reading this article and are feeling sick of the tournament and do not like the idea of a tournament that never ends, firstly, you are not alone. More importantly, there is another option other than to leave law altogether. Go west young man or woman, metaphorically speaking, and try something new. There were areas of law that did not exist 10 years ago that are now providing interesting and ful- filling careers for young lawyers. There will be other new areas of law in 10 years. Start think- ing about what areas of law are emerging. Instead of following a traditional path so you can make your parents' dreams come true, have the courage to try something that has not been tried before and let other lawyers compete in the tournament that never ends. LT Ryan Handlarski is a criminal de- fence lawyer in Toronto. He can be reached at 416-837-4500 or ryan@rhcriminaldefence.com. BY JONATHAN RICHARDSON S o much of a family law trial depends on the credibility of one's client. A client whose evidence is considered incredible is often fatal to a case and can result in some staggering losses. The Jan- uary 2019 case of Anthony v. Anthony, a decision of Justice R. Sonya Jain of the Superior Court of Justice, sitting in Bar- rie, Ont., is an example of when a client's lack of candour with the court can spell disaster at trial. Anthony v. Anthony consisted of a bifurcated trial in which the issues being determined were the validity of the par- ties' marriage and the date of separation. Justice Anne Mullins had previous- ly granted a divorce to the respondent's husband, Safraaz Anthony. However, he chose to contest the validity of his mar- riage to Sabrina Anthony and denied that he ever lived in a spousal relation- ship with the applicant wife. One would think that Sabrina Anthony's assumption of Safraaz Anthony's last name would also be a strong presumption in favour of marriage, but even that was insufficient to dissuade Safraaz Anthony from pursuing his claim of invalidity. The parties' evidence with respect to their marriage had some consistencies. Both parties agreed they attended at a facility in North York on June 30, 2004, which also happened to be Sabrina An- thony's birthday. Sabrina Anthony's sis- ter and Safraaz Anthony's friend were in attendance as witnesses. The brief ceremony was held, pictures were taken and the parties celebrated that evening. Safraaz Anthony acknowledged he paid for the ceremony, but he later claimed his signature must have been forged by Sabrina Anthony. Safraaz An- thony also claimed he had been drinking all day and agreed to sign a paper indicating he was married to Sabrina Anthony to satisfy Sabrina Anthony's mother, who disapproved of the parties' sexual relationship. Ac- cording to Safraaz Anthony, he offered Sabrina Anthony $300 in cash as a birthday present, which she declined as she was intent on marriage. Safraaz Anthony recalled attending the ceremony throughout which he was giggling and immedi- ately returned to a bar to continue drink- ing hard. Both parties called witnesses who sup- ported their respective versions of events. Safraaz Anthony called his friend, a man named Taj, who was also the witness to the marriage ceremony. Taj supported Safraaz Anthony's claims of heavy drink- ing, but he acknowledged being aware throughout the ceremony that it was a marriage ceremony. Of note, Sabrina An- thony produced Safraaz Anthony's signed credit card receipt for the ceremony, signed at a time Safraaz Anthony claimed he was at a bar drinking. Based on the above, it is not difficult to understand why Jain found the par- ties' marriage was valid. Jain found that had Safraaz Anthony been as drunk as he claimed, a marriage licence should never have been issued nor should the marriage have been solemnized. Unfortunately for Safraaz Anthony, his credibility problems did not end there. Jain was yet to determine the parties' valuation date. Safraaz Anthony claimed the date of separation was in August 2007, a date on which he was charged with assaulting Sabrina Anthony. Sabrina An- thony claimed the valuation date was in June 2011, when she left the matrimonial home for good. Sabrina Anthony's appli- cation was only commenced on March 5, 2014, meaning that if Safraaz Anthony's date of sep- aration was correct, Sabrina Anthony would be outside the six-year limitation period found in s. 7(3) of the Family Law Act to bring a claim for equalization. Again, Safraaz Anthony's evidence was found incredible by Jain. Safraaz Anthony's strongest argument came from Sabrina Anthony filing her tax re- turns listing an address different from the parties' shared residence and listing her status as single. Sabrina Anthony claimed it was the respondent's advice to file her taxes in this manner to maxi- mize her GST/HST benefits. Sabrina Anthony also acknowledged moving out of the parties' shared residence follow- ing the assault in 2007, but she returned as Safraaz Anthony made promises to change his behaviour. The balance of the evidence was overwhelmingly against Safraaz Anthony to the point where one would almost question his reasoning for pursuing his claim. As examples, the parties lived togeth- er between 2007 and 2011, sharing bills and relying on each other financially. The parties attended social functions together and travelled together. The par- ties acknowledged each other as spouses for the purpose of purchasing houses and applying for mortgages. Safraaz Anthony paid more than $30,000 for fertility treat- ments in an effort to have a child with Sabrina Anthony. Finally, to rebut Safraaz Anthony's testimony, Sabrina Anthony called Safraaz Anthony's former girl- friend, a woman called Maria Z. Maria Z. testified that, upon her informing Safraaz Anthony that she was pregnant with Safraaz Anthony's child, Safraaz Anthony then informed her that he was married to Sabrina Anthony. Again, when faced with this prepon- derance of evidence, it is easy to see how Jain concluded that the date of separation was in June 2011. The issue of the limita- tion period to bring an equalization claim was moot. Reading this case displays that Safraaz Anthony had an uphill battle throughout. Documents and obvious facts clearly con- tradicted the claims he was making. While it is easy to question why this case ever proceeded to trial, it is an ef- fective cautionary tale for lawyers. If one's client cannot be forthright with the court where there is clear evidence contra- dicting their story, it is likely to result in a total loss for one's client. At the time of writing this column, costs had not yet been decided, but it is reasonable to assume that Safraaz An- thony will be facing a claim for full in- demnity costs against him on the basis of bad faith for his failures to be candid with the court. LT Jonathan Richardson practises family law and civil litigation with Augustine Bater Binks LLP in Ottawa, Ont. He can be reached at jmr@abblaw.ca and tweets @JMR_Lawyer. Speaker's Corner Law is not a tournament Credibility issues undermine claim of invalidity Family Law Jonathan Richardson

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