More Cuts to Legal Aid

The axe has fallen on the Legal Services Society once more. LSS, the organization which provides legal aid in this province, was first hit with funding cuts in 2002. Those cuts resulted in the scaling back of family law services and a refocusing of LSS's delivery model away from hands-on litigation assistance toward litigation advice and web- and telephone-based legal information services. On the bright side, this change resulted in a significant improvement of LSS's primary website and the development of a fantastic website on family law issues. On the less bright side, the funding of legal services for family law cases was nearly extinguished.

The new cuts will see the LawLINE advice service, the Community Advocate Support Line, and all but one of legal aid's regional offices by 1 April 2010. Although more than 50 staff members will lose their jobs and I understand that almost all of LSS's staff lawyers have been let go, LSS's executive director, Mark Benton, has said that service levels won't be affected.

An employees' group called Access to Justice has posted a news release about the cuts, a collection of links to other stories about the cuts and an online petition you can sign; please visit their website. LSS's 3 November 2009 news release is available here.

What's "Without Prejudice" and What's Not

You'll often see certain lawyer's letters marked "without prejudice," and it's not always clear what "without prejudice" means, particularly for people who aren't lawyers. The question has recently come up in a file of mine, and I thought I'd take the opportunity to explain things.

"Without prejudice" protects settlement proposals

Because of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest is correspondence: the exchange of letters setting out the terms on which the lawyer's client would be prepared to settle the case.

As a general but not invariable rule, settling a file means finding a compromise between the parties' positions, which means that neither party gets everything he or she is looking for. Someone who is asking for sole guardianship might compromise and agree to an order for joint guardianship as long as he or she has the children's primary residence; someone who is asking for 70% of the family assets might compromise and agree to take half the family assets as long as spousal support is paid for a certain number of years.

Now, although compromise might be necessary for settlement, the position a party takes to achieve settlement is rarely the position that the party takes at trial. At trial, the person seeking sole guardianship is still going be demanding sole guardianship, and the person after the majority of the family assets is still going to be after the majority of the family assets. But if this is the case, which it usually is, people need a way to communicate settlement proposals without affecting their positions at trial. In other words, if you're suing for twelve 1972 Ford Pintos, you need to be able to propose settlement for six 1972 Ford Pintos and three 1973 Ford Pintos without being held to that position at trial.

This is where "without prejudice" letters come in. Marking a letter "without prejudice" protects the contents of the letter from being disclosed; the letter is being sent without prejudice to the party's position at trial.

To be clear, however, just marking a letter "without prejudice" isn't going to automatically exclude the letter from use at trial. To be excluded, the letter must actually contain a settlement proposal; as our Court of Appeal said in a 1984 case called Belanger v. Gilbert, "not all letters so marked are to be held inadmissible." In another appeal case, Schetky v. Cochrane, from 1918, the court set out what was required to protect "without prejudice" letters:

"... the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation...

"... before the privilege arises two conditions must exist, viz.: (a) a dispute or negotiation between two or more parties; and (b) in which terms are offered"

A "without prejudice" letter that meets this test cannot be put into evidence, whether at trial or as an exhibit to an affidavit.

To be even more clear, it is only the parts of "without prejudice" letters proposing settlement that are protected. A letter that talks about the number of Ford Pintos required to achieve settlement as well as setting hearing dates and the colour of the author's pants, can certainly be be put into evidence about the hearing dates and the author's pants, as long as the portion dealing with the Pintos is blocked out.

Costs

Proper "without prejudice" letters can't even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs. The English Court of Appeal summarized this point in a 1984 case called Cutts v. Head:

"...the court is able to examine and consider such correspondence, where the offeror, in the body of the correspondence in issue, expressly reserves the right to bring the letter to the notice of the judge on the issue of costs after judgment."

(Letters like these are sometimes called Calderbank letters, in reference to the 1975 case from the English Court of Appeal which authorized this narrow exception, Calderbank v. Calderbank.)

Subsequent letters not marked "without prejudice"

Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:

Where the privilege exists, it covers not only the particular letter itself, but also all subsequent parts of the same correspondence on both sides, notwithstanding that they are not expressed to be “without prejudice," unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, where a letter offering terms, but not stated to be “without prejudice” is followed by another saying that the communications between the parties are to be “without prejudice” the former letter is protected.

"With prejudice" letters

"With prejudice" letters are different than "without prejudice" letters. Such letters not only deny any claim of protection from production to the court, they say that the letter will be produced to the court.

Of course, because marking a letter "with prejudice" doesn't make the contents of the letter any more true, or any more compelling and persuasive to judge who reads it, it's not entirely clear what is achieved by marking a letter "with prejudice" apart from expressing the author's conviction about the importance or accuracy of the contents.

Summary

1. "Without prejudice" letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
2. The phrase "without prejudice" only protects settlement proposals. Marking your laundry list or any other communication "without prejudice" isn't going to stop the document from being used in court.
3. The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out.
   
4. If a "without prejudice" letter is going to be used to argue costs down the road, the letter needs to say so or it can't be used to argue costs.

What Custody and Guardianship Really Mean

It's difficult to tell the difference between the rights and duties custody involves from the rights and duties associated with guardianship. This confusion is aggravated because the Divorce Act only talks about custody, but the Family Relations Act talks about both custody and guardianship, and because we get a lot of misleading information about these issues from American media. The explanation, however, involves a history lesson.

The first law on divorce was the UK Divorce and Matrimonial Causes Act, passed in 1857, which became part of the laws of British Columbia as a result of the proclamation of governor Sir James Douglas on 19 November 1858. The Divorce and Matrimonial Causes Act disposed of the whole issue about children in one sentence, which gave the court the authority to make an order about custody at the time it was making an order about divorce, if it thought the custody order was appropriate.

So far, we're still talking about a concept everyone will understand. Custody, within the meaning of the first Divorce Act, describes the right of a parent to direct his or her child's life and make decisions about education, health care, moral instruction, sports activities and so forth, as well as the duty of a parent to provide his or her child with the necessities of life and an education.

Guardianship was first discussed in British Columbia's Apprentices and Minors Act, passed at some point in the late 1880s. This law discussed the duty of masters to provide the apprenticed children in their care with the necessities of life and an education, and the right of masters to benefit from the child's labour and make decisions about the child's education, health care and so on. Later on, these basic provisions about guardianship were moved into the Infants Act and, by 1930, into the Equal Guardianship of Infants Act.

Guardianship under these laws concerns the rights and duties people have in respect of the children who are in their care. These rights and duties are exactly the rights and duties that parents have, the difference is that these rights and duties are being exercised by someone who isn't a parent. In other words, guardianship is about the parental rights and duties exercised by non-parents.

So far, this still makes a lot of sense, especially when you think about the sort of people who might be guardians today: the person you might ask to care for your children in the event of your death, or the people with whom children are placed when they have been seized from their parents by the government.

Problems started cropping up in 1978 when the provincial government decided to dump all of the laws about separated families into a single piece of legislation, the Family Relations Act. In this new law, custody and guardianship were discussed side by side, and the law now said that "any person" - not just parents - could apply for custody, and that "any person" - not just non-parents - could apply for guardianship. Since parents could now apply for both custody and guardianship parents did apply for both custody and guardianship, and it became difficult to differentiate between the rights and duties included in "custody" and the rights and duties included in "guardianship."

The best that could be said was that "guardianship" now contained the nuts and bolts of parenting: the right to say where the child went to school, the right to direct the course of the child's medical treatment, the right to say where the child would live, the right to say what the child would wear to school and the right to get information from the child's doctors, teachers and coaches. "Custody" suggested a bundle of rights sort of like ownership, in the sense of having the home where the child lived most often.

Things got even worse as time went on, however, because the courts began to award joint custody without requiring parents to share their children's time equally or even near-equally. I, for example, represent parents who live all over the world but have joint custody of children who live here in British Columbia. None of these parents see their children more frequently than once or twice per month, and most see their children only once or twice per year, yet they all have joint custody of their children.

As a result of this evolution in the law, there is no connection at all between the amount of time a parent has with a child and the likelihood of that parent having joint custody or sole custody of the child, or no custodial rights at all. "Joint custody" now really only means that a parent is at least an okay sort of parent, and that he or she gets along relatively well with the other parent. That's about it.

Since so much significance was now lost in the distinction between sole custody and joint custody, the courts began to award joint custody in almost all cases where both parents were good enough parents and got along well enough with each other. At the same time, the courts began to award joint guardianship more and more commonly, and joint guardianship would be awarded with even less reluctance than joint custody... as long as both parents were involved in the child's life and were capable of maintaining the bare amount of communications necessary to discuss things from time to time.

To summarize, sole custody versus joint custody doesn't mean very much any more. In fact, custody doesn't mean much at all compared to guardianship; guardianship is what's most important because guardianship is all about the practical parenting and raising of a child. As well, sole custody doesn't give a parent any more authority than the other parent, as long as the parents have joint guardianship, and joint guardianship is now the rule rather than the exception.

For a longer and more detailed discussion, go to www.bcfamilylawresource.com.

New Website for Children

The BC Justice Education Society, formerly the Law Courts Education Society of BC, has launched a new website, www.kidsbc.ca, aimed at children whose parents are splitting up. The website offers lots of information about separation and the legal process, as well as information about children's experience of and feelings during separation, how separation may impact on their home life, and how their parents might react to separation. I am very impressed with this website.

The new website should nicely complement the provincial government's existing efforts in the area, available at www.familieschange.ca.

Government Announces Implementation of New Family Law Rules

The provincial government announced today that new Supreme Court family law rules will come into effect on 1 July 2010.

The new rules for family law matters are one of the recommendations flowing from the Family Justice Reform Working Group's 2005 report, A New Justice System for Children and Families (PDF). A draft of the new rules was posted on the website of the Justice Review Task Force in 2008 for comment and consultation.

The new rules are intended to reduce expense by gearing the complexity of the litigation to the complexity of the case, limiting rights of discovery and requiring experts to serve the court rather than the parties. Family law cases will be more tightly managed and mediation will be mandatory on the request of a party. A completely new set of court forms will standardize family law pleadings and make them more accessible. A summary of other highlights (PDF) is available from the JRTF.

Update

The new rules (PDF) have now been published. Be careful about printing them, they run to some 382 pages.

Lawyers' Magazine Publishes Rate Survey

Canadian Lawyer has published its 2009 survey of lawyers' fees, which includes the rates charged for common family law activities broken down by region and size of firm.

Supreme Court of Canada issues Important Judgment

On Friday 26 June 2009 the Supreme Court of Canada released its judgment in A.C., A.C. and A.C. v. Director of Child and Family Services, 2009 SCC 30. The case involves a young woman who, at the age of 14, was forced to undergo a blood transfusion against her wishes in the course of her medical treatment. The child, a Jehovah's Witness, had refused to give her consent to the treatment, whereupon, following a psychiatric assessment, the child was apprehended by the Manitoba child welfare agency which authorized the transfusion on her behalf.

Although this case was largely argued as a breach of the child's rights under the Charter of Rights and Freedoms, it will likely have a huge impact on family law as a result of the court's discussion of the best interests of the child and the weight to be given to a child's wishes in assessing the child's best interests.

Under s. 16(8) the Divorce Act, the child's "best interests" are the sole criterion to be taken into account in making decisions about access and custody, "as determined by reference to the condition, means, needs and other circumstances of the child." The Family Relations Act says much the same thing at s. 24(1), although the FRA provides a more lengthy list of factors and says that the court should also consider the views of the child, "if appropriate."

In family law cases, the courts have been willing to consider the preferences of even very young children, but the amount of weight the court will give those preferences depends entirely on the child's age, development and maturity. Most of the time, this means that the court will listen to wishes of any child able to express them and be increasingly inclined to follow those wishes as the child grows up; the court will take the wishes of 11 year olds quite seriously, it will take the preferences of 14 year olds still more seriously, and it will almost always do what 16 year olds want.

In A.C., the child was 14 years old, almost 15. The Manitoba child welfare law said that the court could authorize medical treatment it believed to be in the child's best interests, with the wishes of children 16 or older being determinative of the issue. As a result, the court's power to force the child to have the transfusion rested wholly on the court's assessment of the child's best interests knowing, however, that the child objected to the treatment.

The court held that the best interests test in the Manitoba law should be considered to operate on a sliding scale, with the child's preferences being given more weight as the child grows older, subject to the court's assessment of the child's maturity. The degree of scrutiny applied in this assessment, however, should increase with the importance of the decision to be made, taking into account:

1. the intellectual capacity and degree of sophistication of child to understand the decision to be made;
   
2. the stability of the child's views and whether they are a true reflection of the child's values and beliefs;
3. the impact of the child's lifestyle, family relationships and social affiliations on the child's ability to exercise independent judgment; and,
   
4. the existence of any emotional or psychiatric vulnerabilities impacting on the child's decision-making ability.
   

Neither the Divorce Act nor the Family Relations Act prescribe an age at which a child's wishes must be taken into account when a decision must be made about the child's parenting arrangements, and even the FRA, which says the court may take those wishes into account doesn't say they must be taken into account. As a result, the case law is somewhat muddy on when and whether children's wishes must be heard, how much weight should be given to them when they are heard. This decision should give critical guidance on all of these issues.