29 June 2015

Call for Submissions: Canadian Journal of Family Law

The Canadian Journal of Family Law — whose Advisory Board I have just joined — is a refereed bilingual law journal that publishes academic articles on a broad range of family law issues. The CJFL was the first family law journal in Canada, and for some reason was originally published at Osgoode Hall; its editors came to their senses and moved to UBC four years later, in 1982.

The CJFL had issued a call for submissions for issue 30:1, to be published in the fall of 2015 now that 29:2 is off to the presses. According to the CJFL's submissions guidelines, this is what you have to do:
  • Manuscripts should be typewritten, double spaced, written in either English or French and be sent in Word format. Articles should not exceed forty typewritten pages, about 8,000 to 10,000 words.
  • Include a cover page with the title of the article, the author's name, a brief statement of the author's qualifications, any acknowledgements or credits and a one paragraph summary or mc abstract of the article.
  • Unless the Editorial Board specifically permits otherwise, only original, previously unpublished manuscripts will be accepted.
In terms of style, the Journal says this:
  • Quotations should be distinguished from the text by single spacing. 
  • Manuscripts should include footnotes rather than endnotes.
  • Manuscripts should follow the Canadian Guide to Uniform Legal Citation.
  • If the article is a long one or contains complex material, the use of subheadings to break up the text is encouraged.
Submissions can be sent in by email to cdnjfl@interchange.ubc.ca or by snail mail to:
Canadian Journal of Family Law
University of British Columbia
Room 109, Annex 1, Faculty of Law
1822 East Mall
Vancouver, BC, V6T 1Z1
Canada
Submit!

15 June 2015

It's Hammer Time: Provincial Court Exercises Extraordinary Enforcement Powers to Jail Litigant

British Columbia's Family Law Act improves over the old Family Relations Act in many ways, including by giving the Provincial Court the power to enforce its own orders, which is exactly what the Honourable Judge Bond did in the recent case of J.R.B. v J.H.F. 

Under the old legislation, the power of the Provincial Court to enforce its own orders was very limited. If you lipped off the judge, you'd get into some trouble for sure, but enforcing orders about guardianship, custody and access was very difficult — you actually had to commence a private prosecution under the Offence Act, a complicated process that hardly anyone ever attempted — and the court could not make costs orders. At least the Family Maintenance Enforcement Program more or less took care of enforcing support orders.

The new legislation, however, comes with some pretty sharp teeth, especially s. 231 which allows the court to imprison a person for up to 30 days if it is satisfied that "no other order" under the act "will be sufficient to secure the person's compliance." (The section also allows the court to make peace officer enforcement orders in respect of parenting time and contact, which I've discussed elsewhere.)

The decision in J.R.B. concerned the variation and enforcement of a number of orders made at trial, including a publication ban and a protection order intended to prevent all contact between the father and the mother and her family. (The father had been subject to similar orders prior to trial which he breached on "countless occasions," mainly when the child was between exchanged for the purposes of parenting time, and resulted in criminal harassment charges being laid.) The application before the court, apparently brought on behalf of the mother and her family, sought: an order that the protection order made at trial be expanded; and order that the father be prevented publishing material concerning the litigation and his relationship with the mother; and, an order that the father be imprisoned pursuant to s. 231.

The court allowed the first two claims for reasons that are well worth reading. As it's the claim concerning imprisonment that I'm mostly interested in, I'll just reproduce the court's orders on these two initial claims. With respect to the protection order, the court held that:
"[13] I am going to issue a further Protection Order that provides that [the father] is not to communicate directly or indirectly with any family member of [the mother and her spouse], known to him, including, but not limited to, communicating any of the details of his relationship with [the mother], or any of the matters that are the subject of this or the Supreme Court litigation between the [the mother and her spouse] except communication necessitated by this litigation through [the mother's] counsel. The Protection Order granted at the close of trial remains in effect. This order will not expire."
With respect to the publication ban, the court made a conduct order to the effect that:
"[19] ... [The father] shall not directly or indirectly participate in the disclosure, publication, or dissemination of any material outside of court hearings relating to his relationship with [the mother], or any matters that are the subject of these proceedings to any person, group or other entity except for the express purpose of participating in private therapy sessions addressing his own issues. Furthermore, [the father] shall not annoy or disturb the [the mother and her spouse], their children or family members, friends or church members, known to him, either directly or indirectly. To be clear, this order is not intended to address any conduct by [the father] which amounts to a breach of the Protection Order, which is intended to protect those covered by the order from risk of harm. It is intended to address other conduct by [the father] which has the effect of civil harassment of the [the mother and her spouse]."
Turning to the imprisonment issue then, the court first found that the father had breached the orders made at trial by: publishing the names of the parties and the children on the internet; speaking to members of the mother's church; and, making statements to the general public at the courthouse. (To be clear, the "statements to the general public" were not made in a courtroom in the course of a hearing. At paragraph 10 of her decision, the judge repeated the father's admission that on the day in question he "elected to stand in the court house announcing to all repeatedly that '[the mother's spouse] beats his kids' and '[the mother] is a liar'," and that "following the hearing, he apparently chose to read from his website at the top of his lungs in the hallway of the courthouse, for all to hear.")

Next, the judge clarified that the order that had been breached was the publication ban, not the protection order. This is an important point as protection orders cannot be enforced through the Family Law Act and must be handled as a criminal offence under the Criminal Code, whereas conduct orders, including the publication ban, can be handled through the act's general and extraordinary enforcement powers.

Drawing a parallel with the case law on civil contempt proceedings, the judge held that the purpose of s. 231 is "not to punish" but to "secure compliance" with court orders, in order to ensure that "existing and future court orders will be respected." Because this purpose is specific to particular orders applying to particular people, s. 231 must be applied in light of the particular circumstances of each case. In other words, any order must "specifically address the actual situation before the court," and the father's conduct in this case "must be viewed in the context of the entire proceeding."

The judge then considered the sanctions taken against the father thus far, the enforcement tools available under s. 228 that are specific to the enforcement of conduct orders, which include financial penalties and adverse inferences, and the enforcement tools available under s. 231 (important bits in bold and cites omitted):
"[27] ... [the father's] conduct must be viewed in the context of the entire proceeding, in which he has established a pattern of harassing [the mother and her spouse] to the extent that he was charged with and pled guilty to criminal harassment. Subsequent to being sentenced for that offence, he engaged in the conduct complained of, and other acts which appear to be intended to punish [the mother and her spouse] or perceived offences against [the father].  
"[28] While this context suggests that the lower range of the remedies offered may be inappropriate, it is well established that the sanction of imprisonment should be used sparingly, and only when no other remedy will be sufficient to secure the person’s compliance. However, neither party suggests that an alternative order is appropriate in these circumstances as this is not a situation where limits on conduct have not been previously considered. In fact, the restrictions on [the father's] contact with his son arise directly from his behaviour and his failure to address his lack of impulse control, issues regarding anger management, and the degree of his hostility and anger towards [the mother's family].

"[29] I note as well, that neither party suggests that an adverse inference is an appropriate remedy in these circumstances. In fact, the risk of an adverse inference being drawn did not inspire [the father] to fully disclose his financial circumstances prior to the commencement of the trial. 
"[30] With respect to an award of costs, a financial penalty or fine, [the mother] notes in her Affidavit ... that [the father] owes $12,000 in child support arrears despite the fact that he has apparently been employed throughout these proceedings. At the end of the trial, he was also ordered to pay $5,000 to [the mother], representing the remainder of his one-half share of the cost of the report prepared ... pursuant to section 211 of the Family Law Act. [The father] had previously been ordered to contribute to that cost, but failed to meet his obligation. [The father] has not made any payment towards either debt. In addition, counsel for [the mother] points out that [the father] was released on cash bail of $1,000 after being charged with criminal harassment and that did not deter him from breaching his bail conditions to keep the peace and be of good behaviour. In fact, [the father] continued to breach the Protection Order and his bail conditions until he was ordered detained.

"[31] In these circumstances, I do not believe that imposing any kind of financial consequences for [the father's] behaviour will have the effect of securing his compliance with court orders. No sanction, other than incarceration has worked to date to impress upon him the importance of complying with court orders and I find that 'no other sanction will force upon his will the authority of this court' as was the case in Manolescu v Manolescu." 
Having concluded that no option other than jail was likely to encourage the father to comply with the various orders made to date, the judge turned to the factors that should guide her decision on the nature and length of the father's imprisonment, and her conclusion on the issue:
"[33] I find that the following considerations apply when determining the duration of the appropriate period of incarceration:
a) the history of criminal harassment that predates the conduct complained of; 
b) the extended period over which [the father's] conduct persisted; 
c) [the father's] prior assurances that he had no interest in harassing [the mother] or her family; 
d) [the father's] apparent failure to address his lack of impulse control, anger management and hostility and anger towards the [the mother's family] through counseling or otherwise; and 
e) [the father's] involvement of others in distributing offending material about the parties to this proceeding.
"[34] In these aggravating circumstances, I find that more than a nominal period of incarceration is required to bring home to [the father's] the fact that he must respect the court’s authority. On the other hand, [the father's] must understand that further action will be taken if he continues to disrespect court orders in the future. In the result, I am going to sentence [the father's] to ten days in jail, to be served forthwith.

"[35] A warrant will issue for [the father's] arrest and he will be detained in custody at a Provincial facility for 10 days, commencing upon his arrest."
To summarize, the steps taken by Judge Bond are roughly these:
1. Determine whether the respondent has breached an order. 
2. Determine whether the breached order is a protection order or some other order available under the Family Law Act; do not proceed if the order is a protection order. 
3. Assess the gravity of the respondent's misconduct in the context of the entire proceeding, including any steps that have been taken to secure the respondent's compliance with the order, or similar orders, in the past. 
4. Consider the appropriateness of any specific enforcement tools provided by the legislation in respect of the order. If one or more of those remedies are likely to be effective, apply those remedies and do not consider a sentence of imprisonment. 
5. If imprisonment is necessary, review the circumstances of the proceeding to date to identify any aggravating circumstances that suggest that more than a nominal period of imprisonment is required.
Although the aggravating factors identified by the judge are drawn from the particular facts of the case before her, it seems to me that some general principles can be deduced:
6. Aggravating circumstances to be considered in determining the period of imprisonment may include:
a. the respondent's history of breaches before the breach which triggered the enforcement action; 
b. the respondent's past excuses for noncompliance; 
c. the respondent's past assurances of future compliance; 
d. the duration of the the respondent's noncompliant behaviour; and, 
e. the impact of the the respondent's noncompliant behaviour on the applicant.
I am grateful to Judge Bond for her clear writing and reasoning, and for taking up, on behalf of the Provincial Court bench, the powerful new tools the Family Law Act makes available.

Thanks to my colleagues Agnes Huang and Morag MacLeod for bringing this case to my attention.

08 June 2015

Get Over It, Part Two: Thoughts from the Bench and a Few More from Me

In my recent post "Get Over It: Why it Pays to Let Bygones Be Bygones in Family Law Disputes," I talked about the foolishness of being guided by your hurt feelings or desire for revenge when taking a family law dispute to court. I also gave a few examples of the typical sort of silliness I often saw in my practice as a family law lawyer when parents managed their conflict by exchanging allegations and counterallegations in affidavits, such as this gem from early in my career:
Her: "You drink all the time. You're always drunk and there are empties all over the house. You even drive when you've been drinking." 
Him: "I only drink socially, one or two beers at most, and I never ever drive when I've been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter."
Since that post, a number of colleagues have brought to my attention two recent decisions by Madam Justice Sharma of the Supreme Court of British Columbia which make some rather pointed remarks on this issue, B.A.S. aka B.H. v S.R.S. and A.M.D. v K.R.J. Each case took two days to argue, and Justice Sharma apparently heard them back to back at the end of January 2015. If she happened to be frustrated by the nature of these hearings, which I am sure was not the case, such would be entirely understandable.

B.A.S. v S.R.S.

This decision involved the respondent's application to change a temporary order on parenting arrangements. As is usual for interim applications in the Supreme Court, the only evidence before the court was contained in affidavits. There was no oral evidence.

Here are the judge's preliminary comments about the quality of the affidavit material before her, with some of the more important bits in bold:
"[3] The affidavit material filed in support of and opposition to the application contained hearsay, double-hearsay, statements without attribution or that could not be in the affiant’s personal knowledge, argument, speculation and other statements of dubious admissibility. Allegations are flung from both sides. Each party objected to portions of the other party’s evidence and suggested it was either wholly inadmissible or should be given minimal weight.  
"[4] Some of the claimant’s and respondent’s affidavits relate singular incidents between a child and the other parent that were not significant in the overall assessment of what is the best parenting arrangement for the children. Both parties suggest there are times when they have not been appropriately notified of travel or minor medical and school issues from the other parent. They each accuse the other of talking about the parenting dispute in front of or directly to the children. 
"[5] In addition, the claimant’s affidavit contained a serious allegation against the respondent and his wife about drug use and association with criminals with absolutely no corroborating evidence. In my view, those allegations were improper and should not have been made."
Readers may recall my remark about such affidavit battles in my previous post to the effect that "each party is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty." Here is how the judge summarized the parents' positions:
"[9] In general, the respondent takes the position that the children are doing well living with him and his wife and are taking part in a wide variety of activities. He contends the children’s lives when they resided with the mother were 'fraught with conflict, to the point where [the children] expressed, and continue to express, a strong desire to reside' with him and his wife. The respondent seeks to reduce the children’s weekend visits with the claimant from biweekly to once a month and, instead of an entire month in the summer, two non-consecutive weeks with their mother. ... 
"[10] The reduction in the summer time is said to be based on the children’s desire to spend as much time as they can in [the respondent's city] so they can continue with their activities and visit friends.

"[11] The claimant’s response to the application is deficient. ... The factual basis for the response is encompassed in five bullets. Briefly, the claimant accuses the respondent and his wife of interfering with her parenting and making her communication with the children very difficult. The claimant’s position is that the application is not genuine and is a continuation of a campaign to alienate the children from her. This is a serious allegation, which as I discuss below, I am persuaded has not been established on the evidence. Unfortunately, the claimant heavily relies on the allegation of alienation and offers little other factual or legal arguments as to why the application should not succeed. This puts the court in a very difficult position. The sole issue is to determine what is in the children’s best interests but the claimant has not really answered the respondent’s claims. She submits the blanket statement that extra-curricular activities ought not to trump her time with the children yet she offers no views on whether the activities they are engaged in are in the children’s best interest. Nor does she offer a way to accommodate maintaining the current schedule and not diminishing the children’s participation in activities.

"[12] In relation to the application that [the respondent's wife] become a guardian to the children, the respondent says the appointment is necessary to legally recognize the fact that [the respondent's wife] provides the day to day care of the children while he works. He claims the claimant refuses to communicate with his wife, thus making their family life and decision-making difficult and cumbersome. ...
"[13] The claimant is opposed to [the respondent's wife] becoming a guardian but provides no reason other than the fact that [the respondent's wife] is not the children’s biological parent. With regard to communication, she denies she makes it difficult for [the respondent's wife] to communicate with her. At the same time, her position in court is that she is not legally required to communicate with [the respondent's wife] so the allegation that she does not communicate should not be taken into consideration."
Awesome. Unsurprisingly, the judge was lead to this conclusion in allowing the respondent's application:
"[50] This dispute is bitter. It is clear the parties are not working together well. This is tragic and does nothing to promote the well-being of their children."
A.M.D. v K.R.J.

This case was a summary trial hearing, meaning that there was no oral evidence provided by witnesses, and that all of the evidence before the judge was in affidavit format. The following comes from Justice Sharma's description of the facts of the case, with the more important bits in bold as usual:
"[30] The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability. 
"[31] I find two categories of evidence particularly troubling. The first is where one parent describes his or her observation about a single interaction of the other parent with [the child], the child’s reaction on a single occasion to something the other parent has said or done, or the child saying he was or appearing to be reluctant to want to go to the other parent’s home at the time of transfer.

"[32] The second category is the parents’ conversations with [the child] about issues in this case which are reproduced in their affidavits. It is highly inappropriate for the parties to implicate their six year old child in this dispute in any way.

"[33] It is important to note neither party takes the position that the other party is an unfit parent (except, maybe, an accusation made about the respondent’s drinking, which I will address below). Even if there was such an allegation, the type of evidence described above reveals little, if anything, unusual about either parent’s interaction with their young child in the context of shared parenting.

"[34] Instead, I find these observations are being traded in a 'tit for tat' fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance. 
"[35] I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.

"[36] I must decide what is in the child’s best interests. In that context, each party’s view of what is best for the child and the facts on which that view are based may be helpful to my decision. What is of dubious relevance and questionable reliability is a person’s observation that on one or a few occasions a parent’s interaction with the child or the child’s reaction was less than ideal. Of no relevance is what a six year old said to a parent when that parent, inappropriately, talked to the child about the legal issues in this case."
I do like that phrase, a "cyclonic battle of the affidavits." In any event, at this point, the judge discusses the claimant's allegations about the respondent's drinking habits:
"[37] The claimant states the respondent 'appears to have an issue with alcohol' and that there is an 'obvious alcohol abuse issue'. She refers, among others, to an incident in April 2013 when she believes the respondent was 'grossly intoxicated' while [the child] was in his care. She claims to have confronted him about his drinking during their marriage and says it was a huge issue in their relationship. 
"[38] The respondent 'wholly denies' any problems with alcohol. He points out he is regularly tested for drugs and alcohol for his job. There is also an affidavit from the other person present during the April 2013 incident and that person disagrees with the plaintiff’s characterization of what happened and the respondent’s state of sobriety. 
"[39] The respondent questions the sincerity of the claimant’s accusation, asking why, if she truly believes the respondent has an 'alcohol abuse' problem, she had not sought different parenting terms. Either her concerns about alcohol prior to the relocation dispute were not serious enough to take action, in which case they are not material to this application. Or, she is exaggerating the incidents and her level of concern to try gain an advantage in this application.

"[40] Taking all of these circumstances into account, I find the allegation about alcohol abuse is unfounded. The allegation is serious and should not have been made."
At the end of the day, the claimant's position was rejected by the judge while the respondent's succeeded. He must have been the least be-spattered parent.

A Few More Points

I concluded "Why It Pays to Let Bygones Be Bygones" with a list of things you can do to improve the likelihood that you'll be successful in your court case, and you can see that the folks in B.A.S. v S.R.S. and A.M.D. v K.R.J. disregarded many of them. Their cases remind me of a few other things that need to be said about courtroom disputes involving children.

First, as I said, or at least implied, in my previous post, the court is unconcerned about allegations moral unfitness or character deficiencies unless they impact on a person's capacity or ability to parent a child. No matter how much problems along these lines trouble you, do not raise them in court unless:
  • you are absolutely positive that the problem impacts the other person's capacity or ability to parent your children;
  • the problem is one that other people in the general community would tend to agree is a serious problem which, if true, would likely impact the other person's capacity or ability to parent; and,
  • you have evidence which proves that the problem you're complaining about actually exists.
Second, if you don't have one big problem that you can identify to explain why the other person lacks the capacity or ability to parent a child ("you're always drunk" or "you smoked pot while you were breastfeeding," for example), don't try to compensate by raising a bunch of small problems instead ("he left the child in the car once when he went to buy milk," "she used a naughty word in front of our five-year-old" or "he got drunk at last year's office party and used the photocopier in an inappropriate way"). I have seen affidavits that go on at a ridiculous length, cataloging one picayune issue after another in numbing detail. I appreciate the effort that goes into preparing such material, however it's important to know that this strategy never works.

Endless complaints about small problems do not have a cumulative effect that eventually equals the impact of a big problem, tipping the scales in your favour. Instead, the court, to be blunt, is likely to see you as a bit of a whiner who is prepared to complain about anything to get your way, and the force of your complaints will get smaller and smaller with each successive complaint. Eventually the tables may wind up turning in the other parent's favour if you come to be perceived as the parent who is obstructing the post-separation care of the child!

Third, people have a weird belief in the importance and relevance of character references. I don't know where this comes from, since nothing in the Divorce Act or the Family Law Act says "the winning parent shall be the parent with the most people willing to say nice things about that parent," but there does seem to be this odd reflex to run to friends and family the moment a parenting dispute seems headed to court.

There are a few problems with this approach, apart from the rather sad likelihood that the writing of character references and letters of support will bring an abrupt end to the writer's relationship with the other parent, including these:
  • letters are hearsay, they are not proof that things said in the letter are true (if someone has something really important to say, get them to write an affidavit);
  • most people are able to collect a pile of letters attesting to their fine qualities as a parent, employee or pet owner, and the fact that you've got a stack of them doesn't mean you're special;
  • most letters are clearly partisan, and the weight the court will give to the happy words of an ally is less than the the weight it would give to the happy words of an objective third party; and,
  • letters like this generally don't talk about the negatives known to the writer ("well, she does drink every now and then, especially in the early afternoon on school days, but on the whole she's a totally awesome mom") just the positives ("Harry is the most wonderful and wise parent I have ever met and absolutely radiates compassion and patience"), which seriously undermines their credibility and utility.
If you really want to improve your chances of "success," avoid tactics like these, focus on being an attentive and involved parent, admit the strengths of the other parent and take a mature and considered approach to your family law dispute that is aimed squarely at the children's best interests and the future functioning of the separated family unit.

03 June 2015

Get Over It, Part One: Why It Pays to Let Bygones Be Bygones in Family Law Disputes

Difference is a necessary part of the human condition, without which we'd be an awfully dull lot. Although difference is what gives us creativity and invention, it's also the cause of intolerance and war, and it's what keeps family law lawyers in business. As Martin Gore famously put it,

People are people so why should it be
You and I should get along so awfully?

There are an infinite number of reasons why committed, long-term relationships breakdown. Some people get bored. Some grow apart as they get older. Others just turn into assholes.

Once upon a time, thanks largely to Catholic dogma, marriage was presumed to be a permanent enterprise that would end only upon the death of one or both spouses. That was probably a reasonable arrangement when life expectancy topped out at 30 or 35, but people nowadays generally live into their 80s, and a life-long commitment to one person is an awfully, awfully long commitment.

However, when we of the commonwealth let our hair down in 1857 and agreed that people could get divorced, we weren't prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn't just say talaq, talaq, talaq and be done with it, you had to get a judge to make a divorce order and that meant proving that you met the legal test to qualify for divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the Divorce and Matrimonial Causes Act on the basis that your wife had committed adultery at some point during your marriage. If you happened to be female, simple adultery was a no-go. Instead, you could ask for a for a divorce on the basis that your husband had committed:
  • incestuous adultery;
  • bigamy with adultery;
  • rape, sodomy or bestiality;
  • adultery coupled with cruelty; or,
  • adultery coupled with — my favourite — "desertion without reasonable excuse" for at least two years.
We in Canada are so awesomely progressive that our first legislation on divorce, the 1968 Divorce Act, abolished the distinction between sexes. Regardless of gender, you could ask for a divorce on the basis that you had been separated for at least three years, or, under ss. 4 and 5, that your spouse had:
  • committed adultery;
  • been guilty of sodomy, bestiality, rape or a "homosexual act" (exquisite interior design, perhaps?);
  • gone through a form of marriage to someone other than yourself;
  • treated you with such cruelty that you could no longer live together;
  • been imprisoned for at least three of the last five years;
  • been recently sentenced to death or imprisonment for at least ten years;
  • been "grossly addicted" to alcohol or drugs for the last three years; or,
  • disappeared for the last three years or deserted you for the last five years.
Ahead of our time we truly were.

The Divorce Act didn't stop there. You could also ask the court to make orders for spousal support and child support, and for the custody of your children. However, the court, in addition to considering your "condition, means and other circumstances," also had to think about "the conduct of the parties." Ouch. You can imagine the havoc wrought when success or failure hung on proof of your misconduct during your marriage, or that of your spouse.

Things got much better with the 1985 Divorce Act, which introduced a "no-fault" version of divorce. Although you could still get divorced because of your spouse's adultery or cruelty, misconduct was removed as a consideration in making orders for child support, and the court was expressly forbidden from considering the conduct of a spouse during the marriage when making orders for spousal support and custody.

Now the thing about people is that you can say that misconduct isn't a factor, but it doesn't stop them from thinking that it should be a factor, especially when they're still full of the fraught and inflated emotions that accompany the breakdown of a long relationship. (Terrible lawyers who fail to steer their clients away from this line of thinking certainly don't help.) This brings me to the point of this particular post: it is both idiotic and expensive to take positions in family law disputes because of your hurt feelings or desire for revenge. Let me give you a couple of examples and explain.
"He knew that full well that doing drugs was a deal-breaker — that was why my first marriage broke up! — and he did cocaine anyway. Is this grounds for me getting more than half the family property?" 
"She's the one who had the affair. I'm not going to pay her a penny of support, even if I have to quit my job." 
"I told him when we got married that pornography was an issue for me. He promised me that he would never use it. When we got an internet connection, I asked him again if he would be able to avoid looking at pornography, and he promised he could. I just saw his web browser history and I am completely disgusted. I feel that he's broken a fundamental trust. I want sole custody!"
All of these statements come from people I've spoken with in the last few months, and, regardless of my personal views on the probity of such behaviour, they were all pretty wound up about the situations they found themselves in and were genuinely upset about their spouse's behaviour.

I get that. I understand. I've had thousands of clients in the years I practiced family law, and I totally appreciate how hot emotions run when a long-term relationship comes crashing to the ground. No worries. A problem, however, arises when these emotions are allowed to drive the train rather than the rational side of your brain. The simple truth is that if you walk into court with positions like these, you will lose. None of these positions are supported by the law or the legislation. Not only will you most certainly lose, but:
  • your legal fees will be much higher than they would otherwise have been;
  • you may be ordered to pay your spouse's costs of the application, the trial or the whole of the court proceeding;
  • the enmity you feel toward your spouse now will last far longer than it normally would, and your spouse is certainly going to share the sentiment; and,
  • you will likely lose the respect of your children and, I hope, of your friends and family as well.
The thing is, we no longer think about fault, misconduct, narcissistic injury and the priggish sensibilities of a spouse when we deal with family law problems. Yes, doing illegal drugs is a problem, but it's got nothing to do with how property is divided. Nothing. If you have kids, and he's high when he looks after them, then I have a problem, not because I have a moral issue with his choices but because it reflects poorly on his priorities and parenting capacity. Yes, having an affair is bad, but it's got nothing to do with whether your spouse is entitled to spousal support. Nothing at all. And if you quit your job, I'm going to ask the court to impute income to you and ask for your spouse's costs of the application because of your petty, irresponsible behaviour. Likewise I have no issue with someone's use of pornography, unless the pornography involves children or he watches pornography in front of the kids. You might object to behaviour you consider sinful, but your views of his corruption and general naughtiness have nothing to do with his relationship with the children and capacity to care for them. 

Now consider, for a moment, how your spouse is likely to respond to claims involving his or her weak morals, drug and alcohol use, abusiveness, quick temper, masturbatory habits and so forth. People don't generally take kindly to seeing claims like that in court papers, whether they're true or not, and tend to fight fire with fire. I guarantee that your spouse is not going to write an affidavit admitting to everything. Instead, your spouse will file a stern response that not only denies the truth or extent of the claims you've made but asks for costs, and will then write an affidavit talking about all of your peccadilloes and indiscretions! I once had a case, very early on in my career, which went something like this:
Her: "You drink all the time. You're always drunk and there are empties all over the house. You even drive when you've been drinking." 
Him: "I only drink socially, one or two beers at most, and I never ever drive when I've been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter."
She thought she was seizing the moral high ground by pointing out his weaknesses. He replied by trivializing the severity of his drinking, as I would have expected, and came back with a spicy counterargument about her drug use. I still very much regret this case. 

But what do you think the court does in circumstances like this? Each person is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty. Is this how decisions about the care of children should be made? With the greatest of respect, I think not.

The court, you see, does not want to deal with people who come to court with problems, complaints, grievances and bizarre claims that have no reasonable prospect of success. The court does want to deal with calm, rational people who come to court with solutions, and whose preferred results are well within both the law and the range of likely outcomes. Among other things, this means:
  • dropping arguments and claims that are based on your own feelings of woundedness or your spouse's purportedly immoral behaviour;
  • avoiding mention of historical events that are not genuinely relevant to the claims before the court, no matter how much those events upset you and continue to upset you;
  • keeping your complaints about minutiae and the mundane to yourself;
  • writing affidavits that are maximally factual, avoid invective and use a minimum number of adjectives and adverbs;
  • agreeing to obligations that you cannot avoid;
  • making claims that are minimally controversial, like asking for a divorce based on separation even though you could also ask for a divorce because of your spouse's infidelity; and,
  • proposing rational solutions that look to the future, that work for everyone and that are likely to promote the best interests of your children.
Put more simply, you must grow up and let bygones be bygones. Trust me; this will redound to your benefit, that of your spouse and those of your children.

01 June 2015

Guest Column: Amici Curiae Paralegals to Deliver an Innovative Pro Bono Service, Temporary Foreign Worker Divorce Clinic

by Dom Bautista,
Executive Director, Law Courts Centre

The Amici Curiae Pro Bono Paralegal Programme, which is now in its fourth year of operations, is expanding its services to serve Temporary Foreign Workers who need help in preparing their uncontested divorce applications.

The clinic is offering help to TFWs, specifically those who come from countries like the Philippines where divorce is not allowed, who need to complete their application for an uncontested divorce order with the Supreme Court of British Columbia. The clinic also helps TFWs who have children in their native country, and are in the process of applying to include their children, but not their spouse, in their application to become a Canadian Permanent Resident. For TFWs who do not wish to include their spouse in their PR application, Immigration Canada requires proof of separation, such as a divorce order. The objective of the programme is to help draft these forms to meet the legal requirements and guidelines.

The Amici Curiae volunteers are skilled paralegals who have at least two years litigation experience; they have completed their training in preparing uncontested divorce applications in British Columbia.

Innovation

We have adopted private practice service standards, integrated innovative concepts like unbundling legal services, and used technology to deliver what we hope will be a top notch pro bono service. Consider:
Unbundled service. We have streamlined uncontested divorce applications in British Columbia to eight steps. Our clients can engage us in any of the eight steps. Each step will specify what documents need to be prepared and submitted to the court registry. 
Certitude. Our clients will be told how much they should expect to pay and how long each step should take. 
Support. At each session, will have at least one volunteer who speaks Filipino. At the end of each session, the clients will receive a written checklist or instructions. In between service times, they will receive email or text reminders in the language of their choice.
About the Clinic

Each clinic session will have a duty counsel present to review the completed forms. No legal advice will be given at the clinics. Our clinics will be held on Saturdays. Each session is one hour long. Clients can choose either the 2:00 pm or 3:00 pm time slots. Our first clinic will be held on 6 June 2015.
Email address. tfw.divorce@gmail.com 
Reservations number. 778.322.2839 
Location. Justice Education Society of British Columbia, Room 260 at 800 Hornby Street in Vancouver, British Columbia
Amici Curiae's TFW clinic is self-funded, thus our clients will be charged $25 for each session to help cover expenses.

Our TFW clinic is the latest addition to our growing list of services which include the civil and human rights matters.

This is an exciting time for the practice of pro bono work in British Columbia. If you are interested in participating as duty counsel or paralegal, please write me.

About Dom Bautista

Dom C. Bautista is the executive director of Law Courts Center in Vancouver. When not teaching, he tinkers with ways to open access to justice to self-represented litigants in BC. Follow Dom on Twitter at @lccdombautista.

15 May 2015

Why the Family Law Act Should Be a Complete Code

A fog of uncertainty and conflicting cases continues to trouble the new Family Law Act. The confusion is understandable, given that barely two years have elapsed since the act came fully into force and that the Court of Appeal has yet to pronounce upon the key areas of controversy, but nonetheless highlights critical access to justice issues that went unobserved and unnoticed under the previous legislative regime which thirty years' of case law had fully explored.

One of these key areas concerns the status of gifts received by spouses and whether such gifts are divisible family property or are excluded from sharing. Under s. 85(1)(b.1) of the act, "gifts to a spouse from a third party" are excluded from the pool of family property that is divided between spouses. However, controversy has arisen as to whether this seemly simple statement captures all gifts to a spouse such that the common law presumption of advancement no longer applies.

(The "common law" is the English legal system in which judges build the law as they decide each case, and is the legal system everywhere in Canada except Quebec. The "presumption of advancement" is a principle of the common law that when a spouse or a parent transfer property to a spouse or a child, the transfer is a gift. The presumption can usually be avoided if the spouse or parent can prove that the transfer was a loan or otherwise show that there was no intention to make a gift. The presumption of advancement is written into the Family Law Act.)

In Remmem v Remmem, Mr. Justice Butler decided that the presumption of advancement no longer applies in British Columbia because the Family Law Act is "intended to be a complete code so that there is no need to examine the intention of the parties." Moreover, if the presumption did apply, the presumption would: require that unmarried spouses be treated differently than married spouses, as the presumption only operates between married spouses; and, undermine the "apparent simplicity and certainty of the property division scheme."

On the other hand, Mr. Justice Masuhara, writing in Wells v Campbell, observed that the act fails to explicitly extinguish the presumption of advancement or otherwise alter the law on perfected inter vivos gifts, and applied the presumption. A similar result was found by Mr. Justice Walker in V.J.F. v S.K.W., who further noted the unfortunate provisions of s. 104(2) of the act,
"The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law,"
and likewise applied the presumption. I've discussed all three of these cases more fully in my post "Dividing Property under the FLA."

The different conclusions reached in these cases reflects more than a disagreement between judges; they reflect two of the fundamental barriers to accessible justice created by our legislation on family law.

Firstly, nothing in the Family Law Act tells the reader that she must look anywhere other than the act to understand her right to share in the property accumulating during her relationship. Nothing in the act hints that the presumption of advancement exists, never mind the other common law principles like the presumptions of gift and resulting trust, the doctrine of unjust enrichment or the constructive trust. How would someone leaving a relationship ever come to the conclusion that she needed to look anywhere other than the legislation on the division of family property to figure out her and her spouse’s rights? What would make her even suspect that there might be other rules to consider than those set out in the act?

Secondly, by injecting the principles of the common law into the division of family property, the certainty created by the Family Law Act – such as it is – is substantially undermined. Vagueness in legislation has a number of negative effects in family law matters: it makes the results of disputes indeterminate and potentially unknowable; it broadens the range of likely outcomes; in broadening the range of outcomes, it does nothing to limit spouses’ hopes and expectations about the result of their cases; and, in failing to limit spouses’ expectations, it promotes conflict.

I have written elsewhere about the need for legislation on family law to be clearly written and comprehensible to the average reader. I have also written about how legislation on family law that fails to limit the range of likely outcomes encourages a single-serving approach to justice that, in serving the individual well, creates uncertainty and a muddled body of case law for everyone else. I’ve also written about the how the chances of settlement improve when individuals’ expectations as to outcome lie within the range of likely results and how the chances of settlement correspondingly diminish when litigants have unrealistically high expectations, and will say no more on the matter.

In my view, Mr. Justice Butler’s approach to the Family Law Act, although undermined by s. 104(2), is much to be preferred in the context of family law disputes. If I had my druthers, the legislation on family law would indeed be a complete code, to both enhance access to family justice and dampen conflict by constraining parties’ expectations.

It seems to me that there are at least three principles that should be applied to the design and drafting of legislation on family law subjects if access to justice is a goal worth pursuing:

1. The legislation on family law should be written as clearly and concisely as possible. The average person, possessed of average intellect and average literacy, ought not be required to retain counsel to read and understand the legislation applicable to her circumstances. Family justice is inaccessible when the governing legislation is incomprehensible.

2. The legislation on family law should be exhaustive of the subject matter it purports to address. It is not unreasonable for an individual to expect that reading the legislation on the division of family property would provide all of the information relevant to the division of family property. Family justice is inaccessible when critical sources of law exist parallel to and unacknowledged by the governing legislation.

3. The legislation on family law should provide certainty as to the results of proceedings commenced under that legislation. People reading the legislation should be able to understand how the legislation applies to their circumstances and predict the likely outcome of proceedings under that legislation. Family justice is inaccessible when the result of the application of the governing legislation is indeterminate.

Much of the present efforts toward justice reform is focused on improving public legal education, redesigning justice processes and integrating social services within justice processes. These efforts necessarily contemplate revision of the rules of court, but there are more fundamental rules that must also be considered. Reform of the legislation on domestic relations must not be overlooked as we work to improve the accessibility of family justice.

It seems to me that the Family Law Act, and access to family justice for British Columbians, would be greatly improved if s. 104(2) was amended to limit the application of other laws to the relevant legislation of British Columbia, like the Land Title Act or the Partition of Property Act, and to expressly extinguish the application of common law principles to the rules about family property and excluded property under the act.

A version of this post was originally published in the legal news magazine Slaw on 15 May 2015.

02 May 2015

Dividing Property Under the FLA: Where We're At

The Family Law Act has been law in British Columbia for just over two years now, and we're starting to accumulate a good number of court decisions interpreting the parts of the act dealing with the division of property and debt. Since I've just spoken about these cases for the Trial Lawyers' Association of British Columbia and the Continuing Legal Education Society, I thought I'd provide a short summary of where we've gotten to.

The first case dealing with property under the new act was Asselin v Roy, a 2013 decision of Mr. Justice Harvey. This was a helpful case, as the judge had to address property that was brought into the parties' relationship, property bought during the relationship with inheritances, property bought during the relationship using the property brought into the relationship, and property bought during the relationship using property brought into the relationship plus new money earned during the relationship. This is important because:
  1. property brought into the relationship is supposed to be excluded from the property the spouses  share after separation;
  2. inheritances received during the relationship are supposed to be excluded from shared property; 
  3. spouses are presumed to share in property bought during the relationship; and,
  4. spouses are also supposed to share in the increase in value of excluded property during their relationship.
The judge decided that the equity in property brought into the relationship (the sale value minus the amount of any mortgages that had to be paid off from the sale proceeds) is what is excluded from sharing, and that all increases in value above the equity when the relationship started is to be shared. If that property is sold and the proceeds used to buy a new property, the person who bought the first property into the relationship is entitled to get the equity in the first property out of the new property. Inheritances are excluded from sharing between spouses, and a spouse who puts money from an inheritance into buying a property is entitled to get that money out of the property. However, the judge also decided that if a property excluded from sharing goes down in value during the relationship, the spouse who owns the property isn't entitled to get a credit for the decrease from shared property.

Perhaps most importantly, the judge also decided that the new act is intended to:
"[105] ... create more certainty for litigants in the division of their assets. The broad discretion formerly available under the [old legislation] has been replaced with a more formulaic approach to both the identification and division of family property ..."
Oh, would that the new act was indeed more certain.

The next important case was Remmem v Remmem, a 2014 decision of Mr. Justice Butler that I've written about elsewhere. Like in Asselin, the judge had to deal with property that was brought into the relationship and went down in value, property that brought into the relationship and sold and used to buy new properties, and property bought during the relationship with money earned during the relationship, as well as one spouse's excluded property that is put into the names of both spouses.

Justice Butler reached the same conclusion about property going down in value as Justice Harvey: if property excluded from sharing goes down in value, the spouse who owns the excluded property has to eat the loss and cannot make up the lost value from shared property. Good. This approach is consistent with what the Family Law Act appears to want the court to do, and it's good to have two decisions making the same decision on the issue.

On the excluded property that was transferred into both spouses' names, the judge decided that the transfer didn't affect the amount of the exclusion that the spouse who formerly owned the property would be entitled to. This was a really important point because of a principle of the old common law called the "presumption of advancement" that normally would have characterized the transfer as a gift between spouses essentially erasing the exclusion that the former owner would have been entitled to.

The common law, the rules made by judges when there is no legislation that requires a specific result, is full of odd quirks that aren't part of legislated laws and are sometimes counterintuitive, like the presumption of advancement, the presumption of gift and the presumption of resulting trust. The main problem with these presumptions is that they're not only not part of the legislated law, the legislated law doesn't even refer to them! As a result, both the rules of the common law and the rules of the legislation might apply to a problem, but someone who doesn't know about the common law would have no idea just reading the legislation that there is a whole other collection of uncodified laws that also needs to be considered. This, I humbly suggest, is a real problem from an access to justice perspective.

In the case of the presumption of advancement, Justice Butler observed that the presumption only applies to married spouses, and applying the presumption would:
  1. create a differential treatment of married and unmarried spouses contrary to what the act intends, and the presumption is at odds with the overall scheme of the act;
  2. defeat the owning spouse of the excluded equity he or she would normally be entitled to; and,
  3. rob the act of the simplicity and certainty of it's plan for the division of property.
Accordingly, the judge decided that the plan for the division of property set out in the act was a "complete code" such that the presumption of advancement, and presumably the other presumptions of the common law, no longer applied to the division of property between spouses.

This conclusion is really appealing to me, and I think that Justice Butler's reasoning is fully in line with the overall design of the Family Law Act. It really would be helpful for everyone, lawyers and spouses alike, if the act were a complete code. Avoiding those old common law principles would lend a great deal of certainty to the division of property between spouses; fewer spouses would have unreasonable expectations as to what they are and aren't entitled to; lawyers would be able to more accurately predict the outcome for their clients and more cases would settle out of court as a result; and, people without lawyers wouldn't have to go spelunking until the bowels of the common law just in case theres some dusty old rule there that applies to them that the legislation doesn't even mention.

However, this was not the conclusion reached by the Chief Justice in Cabezas v Maxim. In this case, the spouses lived in a property that was purchased with help from one spouse's parents, who also contributed to the mortgage from time to time. According to the case law, when the parents of a married person give the person money to buy the family home, without an agreement in place, the court is required to presume that the money was a gift to the person receiving it which, through the presumption of advancement, also becomes a gift to the person's spouse. The Family Law Act, of course, says that gifts received by a spouse during the relationship are the property of the spouse and are excluded from sharing with the other spouse.

The Chief nonetheless applied the presumption of advancement, holding that:
"[68] ... This presumption of advancement is limited in scope, and does not apply to all gifts or inheritances received by a spouse from his or her parents. Generally, such gifts are excluded property under s. 85(1)(b) of the Act ... However, where a parent chooses to provide funds to a child for the purchase or maintenance of the family residence ... those funds are presumed to be a gift to both the child and his or her spouse. Absent evidence rebutting this presumption, the funds ... are family property under s. 84 of the Act."
The presumption of gift was applied by Mr Justice Masuhara in Wells v Campbell, in the context of a property brought into the relationship by one spouse and later transferred into the names of both spouses. The judge said that:
"[32] I find that [the claimant] at the time he transferred the [property] into joint tenancy he did so as a gift to [the respondent]. ... The transfer of an interest in the [property] was a perfected inter vivos gift and the gift cannot be revoked. I do not read the Act as altering the law of inter vivos gifts. Accordingly I cannot see how [the respondent] can be denied the entirety of her interest in the property ..."
Commenting on Remmem, Justice Masuhara said that:
"[38] ... I am not persuaded that [the problems identified by Justice Butler] lead to the conclusion that the Act displaces or extinguishes the presumption of advancement, or the effect of an inter vivos gift resulting in a joint tenancy. There is no explicit extinguishment in the Act [of these presumptions], as has been done in other jurisdictions ..."
Mr. Justice Walker reached the same decision as the Chief and Justice Masuhara more recently, in the 2015 case of V.J.F. v S.K.W. Justice Walker addressed the issues raised by Justice Butler, applied the reasoning of Justice Masuhara, and further observed that the Family Law Act seems to preserve the rules of the old common law:
"[63] ... in s. 104(2), the FLA provides that common law and equitable rights are retained. That section provides:
104(2) The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law.
"[64] In looking through the reasons for judgment, I cannot find where s. 104(2) was raised before Justice Butler in Remmem. ... 
"[67] ... I am of the option that it cannot be said that the FLA does not contain any provision that permits for the presumption of advancement."
With much regret, I do believe that Justice Walker is correct, much though I wish this were not the case. With the greatest respect for the drafters of the Family Law Act, in my view it would be better for British Columbian families if s. 104(2) were repealed; leaving the act open to the vagaries and uncertainty of the common law does a disservice to all.

The other issue that's been working its way through the courts is what "significant unfairness" means. This is important as the act says that:
  1. shared family property should be divided equally between spouses unless an equal division would be "significantly unfair;" and,
  2. a spouse's excluded property should not be divided between spouses unless it would be "significantly unfair" not to do so.
There's only one other law in BC that uses this phrase, and I'm afraid it's the Strata Property Act, which uses the term in the context of the actions taken by a strata property council against a strata property owner, which I don't think is really analogous to the relationship between spouses under the Family Law Act.

In L.G. v R.G., a 2013 case of Mr. Justice Brown, the court referred to a thesaurus for the idea that "significant" means something that is "important, of consequence, of moment, weighty, material, impressive, serious, vital, critical." Looking at some of the Strata Property Act cases, the court noted that "significant" has been held to mean something that is "burdensome, harsh, wrongful, lacking in probity or fair dealing," and that:
"[70] ... the use of the word 'significant' before 'unfairness' indicates to the Court that it should not interfere with the actions of a strata council unless the actions result in something more than mere prejudice or trifling unfairness."
With respect, I don't think that the threshold intended by the Family Law Act is something as modest as unfairness that is "more than mere prejudice or trifling unfairness." It seems to me that the act means to raise a much higher burden to unequal divisions of family property, or the division of excluded property, than this.

In Remmem, Justice Butler took an approach closer to the dictionary definitions and held that "significant unfairness" means something that is "weighty, meaningful, or compelling," and that:
"[44] ... the legislature has raised the bar for a finding of unfairness to justify and unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2) ..."
The court also helpfully provided a three-part test to decide when the equal division of shared family property might be significantly unfair:
  1. determine the family property to be divided, excluding any property qualifying as excluded property;
  2. equally divide the family property; and,
  3. determine whether the equal division is significantly unfair, taking into account the overall result of the equal division including the excluded property each spouse is keeping.
This approach was followed by Madam Justice Fitzpatrick, in the 2015 case of Walburger v Lindsay.

To summarize the general trend of the case law to date, then, when property is brought into a relationship, the equity in the property on the date the relationship begins is the excluded property of the spouse who owns it. However, when that property decreases in value during the relationship, the decreases value is the excluded property and the owning spouse can't look to the shared family property to make up the loss. The family property to be shared by the spouses is the property brought with new money during the relationship plus any increase in the value of excluded property occurring during the relationship. Family property also includes the value of new property bought with the proceeds of sale of excluded property, less the amount of the excluded property that was contributed to the purchase of the new property.

In general, gifts from third parties and inheritances that are received by a spouse during the relationship are excluded property, except when one of the common law presumptions applies to make the gift or inheritance the property of both spouses. Likewise, a spouse who transfers excluded property into the names of both spouses may also be considered to have lost his or her excluded interest in the property.

And this, more or less, is where we're at.