19 August 2015

How to Send Kids Away to Go to School in British Columbia: Appointing a Guardian or Making a Temporary Authorization

The question about what to do when sending a child away to study has come up twice for me in the past month, and I thought I'd write about the problem because there seems to be some confusion about how it is handled under the new Family Law Act.

Quite often a parent will want a child to go to school somewhere in British Columbia, perhaps because the school has a special academic or sports program, but won't be able to move to live with the child. There's nothing wrong with this, of course, but parents do need to figure out how the child will be cared for, especially in case of emergencies, and how decisions about health care, schooling, extracurricular activities and so forth will be made. Most of the time, parents arrange for the child to live with a relative or friend, and trust the relative or friend to do what needs to be done and make the proper decisions at the proper time. There's nothing wrong with this either, but it does raise the legal issue of how the important people who might be involved in the child's life — teachers, principals, doctors, nurses, dentists, counsellors, therapists, coaches, police officers, border guards and the like — will know that the relative or friend has the right to not only have the child with him or her but to make decisions on the child's behalf.

Under the old Family Relations Act, parents would typically apply to have the relative or friend appointed as the child's guardian. This was relatively simply, could be done in the Provincial Court at no cost and could be arranged by a simple consent order. The order could be made for a limited period of time, or, when the need for the appointment had concluded, could be cancelled by a consent order.

Under the new Family Law Act, however, things are a bit different, largely because the act's concept of guardianship is a lot more weighty than the concept of guardianship under the Family Relations Act.

First, someone who isn't a parent cannot be appointed as the guardian of a child by consent. An application must be made to court under s. 51(1) of the act, and the court must be satisfied that it is in the child's best interests, considering the factors set out in ss. 37 and 38, that the person be appointed before the appointment can be made. Since the order is discretionary, the court may or may not make the appointment.

Second, the Rules of Court require the person whose appointment is sought to supply an affidavit providing a whole bunch of information about the children in his or her care and describe the history of any civil or criminal court proceedings that might bear on the safety of the child. The person must get a criminal records check, a protection order registry check and a check of the records of the Ministry for Children and Family Development, and attach these to the affidavit as well.

Third, s. 52(1) of the act requires that notice of the application be given to "each parent or guardian of the child affected by the application," to "each adult person with whom the child usually lives and who generally has care of the child" and to "any other person to whom the court considers it appropriate to serve with notice." 

Fourth, s. 51(4) requires that children 12 years old and older must consent to the appointment, and there's a line of cases developed under the Family Relations Act to the effect that when the consent of a child is required, consent means more than making an affidavit that says "the child agrees." Instead, the child must receive independent legal advice explaining the impact and consequences of giving consent, and the lawyer giving the advice must write an affidavit explaining that the child consents to the appointment and fully understands what the appointment entails.

Finally, when time comes to remove the person as guardian, another application must be made under s. 51 on notice to all the people listed in s. 52. An order removing a person as guardian is also discretionary, which means that the court must be satisfied that the order is in the best interests of the child and may or may not make the order as a result.

This process will indeed see a third party appointed as the child's guardian and be given the parental responsibilities necessary to care for the child, assuming the judge agrees. However, as you can imagine, this is a time-consuming, labour-intensive and potentially quite costly process, especially if it's necessary to hire counsel.

However, s. 43(2) of the new act offers a much cheaper alternative. That subsection says this:
If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l) [parental responsibilities], the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so.
Isn't that easier? All a guardian needs to do to appoint a third party to care for the child is write a letter. No application is necessary and you don't even need to hire a lawyer, although getting some advice from one would be a good idea. The letter doesn't require the approval of a judge and needn't be filed in court.

The catch, if you can call it that, is that the parental responsibilities a guardian can delegate to a third party are somewhat limited. It's not all of the parental responsibilities listed in s. 41, just some of them. However, these limited responsibilities are probably more than enough to let someone care for a child, make decisions about the child's schooling and health care and deal with the important authority figures in the child's life. Here are the responsibilities that can be delegated:
(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; ... 
(c) making decisions respecting with whom the child will live and associate; 
(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; ... 
(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; 
(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; 
(h) giving, refusing or withdrawing consent for the child, if consent is required; 
(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; 
(j) requesting and receiving from third parties health, education or other information respecting the child; .... and 
(l) exercising any other responsibilities reasonably necessary to nurture the child's development.
That's not bad, is it? I can't see any really important issue that a person with the authorization to carry out these responsibilities would be unable to effectively address.

It's important that parents are aware of the option available under s. 43(2). It's far less cumbersome than trying to have a person appointed as guardian under s. 51(1) and requires neither an application to court nor the retainer of costly counsel. It just makes sense.

27 July 2015

Sealing of Family Law Judgments: Supreme Court Issues Important Decision

Mr. Justice Abrioux of the British Columbia Supreme Court has just provided his reasons in M. v M., a high-conflict family law dispute featuring allegations of abuse and parental alienation, and the evidence of no less than six expert witnesses. Although the case is well worth reading for the court's treatment of these issues, and perhaps especially for its scathing criticism of one expert in particular, I was struck by the court's discussion of the law on the sealing of judgments, a problem that rarely sees the light of day.

Owing, I expect, to the nature of the allegations made, the father sought an order that the judge's decision be sealed. This application is unusual in family law cases for two reasons. First, because of Supreme Court Family Rule 22-8(1) and Provincial Court Family Rule 20(10) which restrict access to court files to lawyers and to the parties to a file. Second, because of the court's increasing habit of referring to the parties and their children by initials to protect their identities... like this case, M. v M.

Although counsel came up empty when the judge asked them to research the requested order, the judge did find some law on the matter starting from the other end of the problem, the principle that courts are open to the public (cites included so that the research needn't be reinvented, important bits in bold):
"[7] ... there are established principles which govern this situation. Absent exceptional circumstances, a court is not a private forum. See A.B. (Litigation Guardian of) v Bragg Communications Inc., 2012 SCC 46 at para. 11; R.B.L. v British Columbia, 2005 BCSC 1068 at para. 29; Reference re: Criminal Code of Canada, s. 293, 2010 BCSC 1351 at para. 53; Re Vancouver Sun, 2004 SCC 43 at para. 23. 
"[8] The principle of an open court applies to family law cases and matrimonial court material: K.V.P. v T.E. (1998), 56 B.C.L.R. (3d) 344 (S.C.); Michie v Michie, 2010 BCCA 232 at para. 10. As noted in K.V.P. at para. 7:
… The onus of demonstrating harm is a high one. It is not enough that the defendant may be embarrassed or that he and his family may be subject to unwanted publicity. …
"[9] I have concluded that the overriding principle of the openness of the courts should not be displaced in the circumstances of this case. 
"[10] It is an unfortunate reality litigants face when, unable to privately resolve their highly personal disputes, there is a trial of the proceeding, which is in the public domain. 
"[11] I am mindful of the children’s best interests and in these reasons for judgment will attempt to anonymize certain individuals and events to the extent possible. But as is evident from the recent lengthy reasons for judgment of Mr. Justice Kent in N.R.G. v G.R.G., 2015 BCSC 1062, a case that had several of the features of this proceeding, it is difficult for the court, notwithstanding its best efforts, to insulate children from the effects of published reasons for judgment
"[12] Insofar as this proceeding is concerned, the number of witnesses who testified, the regular attendance in the courtroom of many friends and supporters, particularly on the claimant mother's side, and the fact I will be directing that these reasons for judgment be provided to the treating therapists, militates against providing oral reasons for judgment. In any event, providing oral reasons would not necessarily preclude these reasons from entering the public domain."
And there you have it. The principle of court openness is an "overriding principle" which applies in family law matters just as it does in non-family civil matters, and which will not be circumvented absent "exceptional circumstances." Moreover, the tawdry complaints that so many high-conflict file seem to involve do not qualify as "exceptional." In fact, the publication of such complaints is just one of the risks that litigants take when when they insist on resolving their disputes at trial, and perhaps ought to serve as a disincentive to litigation.

I haven't supplied the links to the cases mentioned by Justice Abrioux. Those cases, including K.V.P., can be found on CanLII.

21 July 2015

Important Evaluation of JP Boyd on Family Law: Courthouse Libraries BC needs your help

If you'll recall from my post of 12 March 2015Courthouse Libraries BC is evaluating its collection of wikibooks maintained under their Clicklaw banner, including own wikibook, JP Boyd on Family Law. The evaluation of Clicklaw's other wikibooks ended last month, and the evaluation of JP Boyd on Family Law will end this Friday.

CLBC and I need your input to tell us what works and what doesn't work about the wikibook. If you haven't done it yet, please visit JP Boyd on Family Law and fill out our very short survey. The survey should only take two or three minutes to finish and you'll be entered into a draw to win our last monthly $100 prepaid Visa gift card.

Thank you for your help!

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

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.