01 March 2015

Court of Appeal Releases Important Judgment on the Complexity of Family Law, Limitation Dates and Commencement of Proceedings

In Halliday v Halliday, the Court of Appeal for British Columbia addresses the critical issue of limitation dates under s. 198 of the Family Law Act and how court proceedings are started under the Supreme Court Family Rules; although its conclusions on s. 198 aren't particularly surprising or detailed, the court's observations about the Rules make a point I expect few practitioners are alive to.

Halliday is one of those cases that are a procedural nightmare, with one misstep that goes unnoticed followed by another and another, until the file gets to the Court of Appeal which is then tasked with untangling the knots. This happens when lawyers are in charge of a case, but more often occurs when one or both parties are without counsel. I do not mean this as a criticism of or jab at litigants without counsel. The fact of the matter is that the rules of the Supreme Court are extraordinarily complex, can be difficult to interpret and can be difficult to apply. As it happens, in Halliday the husband was represented while the wife was not. Here are some pretty powerful comments from the court about the complexity of family law cases, cites omitted and important bits in bold as usual:
"[1] Family law cases contain many traps for the unwary. The Supreme Court Family Rules and the different legislative regimes are complex. Litigants must select with care the appropriate procedures under Family Rules. They must be mindful in seeking relief of the distinctions within and differences between federal and provincial legislation. While the Divorce Act, the Family Law Act, and the Family Relations Act, to the extent that it still applies, contain many similar provisions, they are not identical.

"[2] Particular care must be taken with regard to the procedures and time limits to bring proceedings to set aside provisions of a separation agreement. The fact that many family law litigants are unrepresented compounds the problem. The fine distinctions in procedure and in the legislation are often understandingly lost to the legally untrained and, I might add, to those that are legally trained. Recognizing the distinctions can be the difference between success and failure. This proceeding, to date, is a cautionary tale as to what can go wrong."
Speaking as someone who practiced family law in British Columbia for thirteen years, I couldn't agree more. This is a clarion call for both better access to digestible legal information and the reform of family justice. "Family law cases contain many traps for the unwary." They do indeed.

Background

In a nutshell, the parties had been married for almost a quarter of a century before they separated in 2008. Within a year, the parties signed a separation agreement, without legal advice, dealing with the division of property and spousal support. (Bear with me, the explanation is a bit lengthy. This is a large nut.)

The agreement called for the husband to pay spousal support in the amount of $500 per month for twelve months, however the husband lost his job before the year was out and he made eight of the twelve payment required. The wife, however, wasn't particularly bothered by it and was prepared to call it a day.

The parties started a joint divorce claim a few months after signing their separation agreement. The only order sought was a divorce; no orders about property or spousal support were asked for. The husband returns to work about two years later

Fast forward to early 2014. The wife files the separation agreement in court, but not under the old divorce file, she files it in a brand new court file. Mistake number one. The wife also files a Notice of Application in the new court file. In her application, she asked for an order for spousal support and the division of assets and for the cancellation of the relevant portions of the agreement, doing so under the Family Law Act. Mistake number two.

The husband, represented by a lawyer, files a Response to the application, saying that the application is out of time because of the two-year limit in s. 198 of the Family Law Act is long past, and otherwise objecting to the order sought. The husband then files a Notice of Application asking for an order dismissing the wife's application.

The parties wind up before a judge, who decides that the wife's application to cancel the agreement couldn't be brought in a court file started by filing a separation agreement, the claim had to be made in an action started with a Notice of Family Claim. Mistake number three.

The wife then, following the judge's directions, files a Notice of Family Claim in the new court file. 

The husband files his Response to Family Claim as he normally would, and then files a Notice of Application asking for an order that the wife's claim be struck as it was out of time under the two-year limit in s. 198.

The application then gets before another judge, with each side relying on affidavits in support of their positions... even through affidavits aren't allowed on such applications. (If a claim is so flawed as to be struck, the problem ought to be obvious. Hence, no affidavits are allowed.) Mistake number four. The judge applies s. 198 of the Family Law Act and decides that the wife's claim is not out of time. Mistake number five.

The husband appealed the dismissal of his application to have the wife's claim struck.

Starting a Family Law Proceeding

Under the new Supreme Court Family Rules and the old Supreme Court Rules, there are two ways to start a family law case, either by filing a Petition or by filing a Notice of Family Claim (new rules) or Writ of Summons and Statement of Claim (old rules). Petitions are used when the entire claim can be resolved at a single hearing before a judge in chambers. Adoptions are a good example of this sort of action. Most of the time, we use Notices of Family Claim because we expect that the claim will end in a trial, that there will be a few applications heard before we get to trial and that we'll need to use the rules about disclosure and discovery. A Petition is a sandwich to go. A Notice of Claim is an eight-course sit-down dinner.

Under Rule 3-1(4.1) of the new rules, however, a "family law case" can also be started by filing a separation agreement in court. I expect that most family lawyers haven't noticed this; I hadn't. This small point is actually rather important, because lots of procedural options apply to family law cases. Among other things, you've started a case in which interim applications can be brought and which might potentially be resolved by trial. You've also triggered the obligation Under Rule 7-1(2) to have a Judicial Case Conference before you can apply for any orders, or even send your Notice of Application to the other side.

You can also apply for whatever interim orders you wish Under Rule 10-5, including orders to have the agreement cancelled and orders made in its place. In other words, having started a family law case by filing the agreement, it was open to the wife to make her first application for spousal support and a division of property without needing to start all over and a file a Notice of Family Claim. This is where the second judge erred.
"[58] This proceeding has regrettably been marred by a series of procedural errors and missteps. The proceeding was commenced when the Wife filed by requisition the parties’ Separation Agreement. Pursuant to R. 3-1(4.1), the filing of the requisition commenced the family law case. 
"[59] A party seeking an order to set aside or vary a separation agreement must do so by way of application: see Rules 10-5(1) and 10-5(2). Accordingly, the Wife was correct to bring an application to set aside the whole or part of the Separation Agreement.

"[60] The original application was brought before [the judge]. Unfortunately, the relevant Family Rules do not appear to have been brought to her attention. She erred when she advised the Wife that she could not obtain the relief she sought unless she issued a notice of family claim seeking spousal support. I note that the Husband’s counsel did not suggest otherwise."
Choosing the Right Law

There was an even more fundamental problem in this case: the Family Law Act was the wrong law. The new act has certain rules about how the old act, and cases started under that act, apply under the new act. In particular, s. 252 says this about issues relating to property:
(1) This section applies despite the repeal of the former Act and the enactment of Part 5 of this Act. 
(2) Unless the spouses agree otherwise, 
(a) a proceeding to enforce, set aside or replace an agreement respecting property division made before the coming into force of this section, or 
(b) a proceeding respecting property division started under the former Act
must be started or continued, as applicable, under the former Act as if the former Act had not been repealed.
This doesn't apply to claims about spousal support, but it does mean that it's the Family Relations Act, the "former Act," that governs the terms of the parties' separation agreement about property and applications to cancel those terms. Here's what the court said:
"[42] The effect of s. 252(1) of the FLA is to allow parties that would otherwise have been subject to the FLA property regime at the time they filed their claim to proceed under the old FRA regime despite it having been repealed. In essence, s. 252(1) preserves the FRA regime as it concerns property division for any separation agreements that were finalized before the FRA was repealed, unless the parties elect to proceed under the FLA.

"[43] There is no evidence that the parties agreed that the dispute be governed by the FLA rather than the FRA. Accordingly, an application such as that brought by the Wife to set aside or replace a separation agreement made before the FLA came into force and dealing with property division must be resolved under the FRA. Procedurally, this means that s. 198 of the FLA, the section upon which the Husband relies, could not be used as a means of dismissing the Wife’s proceeding to set aside the property provisions of the Separation Agreement.

"[44] The FLA does not contain a similar transition provision for separation agreements concerning spousal support. In the absence of a similar transition provision for spousal support, a party to a separation agreement finalized before the FLA came into force and seeking to vary the spousal support provisions of that agreement would have to proceed under the FLA. The question of whether a spousal support claim under the FLA would be statute-barred would then turn on the proper construction of s. 198(3)."
Curiously, the Family Law Act didn't need to apply to her claim for spousal support either. Because the parties were married, the wife could have applied for spousal support under the Divorce Act... and the singular advantage she would have had under the Divorce Act is that the act has no limitation periods. Once you have married, you can apply for spousal support, regardless of your separation agreement, how long ago you signed it or how long ago you were divorced.

The Limitation Period

Although the issue of s. 198 did not absolutely have to be discussed, the court did have some interesting things to say about it in relation to s. 164, the section of the Family Law Act on when an agreement on spousal support can be cancelled. Here's what the relevant parts of s. 198 say:
(2) A spouse may start a proceeding for an order under Part 5 to divide property or family debt, Part 6 to divide a pension, or Part 7 for spousal support, no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or 
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
(3) Despite subsection (2), a spouse may make an application for an order to set aside or replace with an order made under Part 5, 6 or 7, as applicable, all or part of an agreement respecting property or spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
Fairly straightforward, except for that last bit about when the "grounds for making the application" were "discovered." 
"[39] While 'grounds' is not defined in s. 198 of the FLA, s. 164 of the FLA sets out a myriad of factors that must be considered when a spouse seeks to set aside or replace a spousal support agreement. The factors are similar to those set out in Miglin. ... "
(The court then recites s. 164(1), (3), (4) and (5).)
"[40] Section 164(3) says that the court may only set aside or replace with an order all or part of an agreement when satisfied that one or more of the circumstances set out in that subsection existed. That provision is then contradicted by s-s. 164(5) which indicates the circumstances set out in s-s. 164(3) need not exist if the agreement is significantly unfair on consideration of a completely different set of circumstances. Given the language of s. 164 determining when a party first discovered, or reasonably ought to have discovered, the grounds for making the application is, I suggest, a matter of some complexity."
Of course, this doesn't shine any additional light on the cases interpreting ss. 198 and 164, but it does suggest that the "grounds" for making the application might be limited to those articulated in the legislation rather than extrinsic factors such as ignorance of the law or a disability preventing action.

My thanks to Mary Fus for bringing this interesting case to my attention.

26 February 2015

Multiple Misfortunes: Legal Challenges for Those in Polyamorous Relationships

I was recently contacted by an individual with an especially interesting legal problem resulting from the particular circumstances of the polyamorous relationship he was involved in that would most certainly not have arisen had he been in a same- or opposite-sex binary relationship. This naturally led me to reflect on the other legal problems people in polyamorous relationships might experience, and these are the subject of this post.

First off, I should say that as far as vanilla family law is concerned, polyamorous relationships are accommodated quite nicely in British Columbia's Family Law Act. I've written about that at length in my post "Polyamory and the Family Law Act: Surprisingly Happy Bedfellows." In a nutshell, people in these relationships would seem to have all of the same rights as anyone who is in an unmarried spousal relationship, as the definition of "spouse" doesn't preclude the possibility of having multiple spousal relationships simultaneously, including with two members of the family who are married to each other. These rights include the right to ask for spousal support, the right to ask for child support and the right to a share of the family property, and can even include rights about the guardianship of non-biological children in certain circumstances. Really neat stuff, and likely unanticipated by the drafters of the legislation.

Things are not necessarily so comfortable for those in polyamorous relationships in other areas of law and life. By and large these problems arise from definitions of "spouse" or "common-law partner," the misleading term used by the federal government to describe unmarried spouses, and assumptions that when it comes to "spouses" and "parents," there are but two of them. The following are a list of potential problems that might arise. Note that whether these are actually problems will depend on the law applicable in your province or territory, and often on the policies and practices of specific organizations.

Marriage

You can't. Well, to be precise, only two of you can marry; any further marriages to persons within the relationship who are married will be void.

There's a bunch of reasons for this. First, I expect that the Marriage Acts of most province says that marriages are between two persons; British Columbia's does. Second, the federal Civil Marriage Act defines marriage as the "lawful union of two persons to the exclusion of all others." Third, the federal Criminal Code makes bigamy a crime. Bummer.

Since members of a polyamorous family cannot marry, or at least cannot all be married, family members other than those who are married to each other will not be eligible for any benefits and entitlements that are reserved for people who are legally married to one another. This may not be a huge problem, as many benefits and entitlements are available to unmarried spouses as well as the married variety, however in most provinces, the right to share in the family property is limited to married spouses. Unmarried spouses can only share in family property the way that married spouses do in Manitoba and British Columbia.

On the up side, if you can't marry, you don't need to get divorced.

Insurance Plans and Benefits

Most private insurance plans limit their coverage to employees, their spouses and their children, and expect that employees will have only one spouse. The same may hold true for provincial public health plans with respect to the family rates they offer. However, it's worth checking whether an additional dependent adult can qualify for coverage under the basic family rate.

Survivor's benefits paid by the Canada Pension Plan and Old Age Security are payable to the spouse or common-law partner — singular — of the deceased person.

Although private pensions plans and retirement savings vehicles like RRSPs only allow for one spousal beneficiary in the event of the owner's death, most plans allow other persons to designate additional beneficiaries. This is meant for children, but can usually be extended to anyone. It will be important to check with your private pension plan administrator to see whether multiple beneficiaries are permitted.

Children

Most provincial Adoption Acts limit adoptions to one or two persons; British Columbia's does. It would also be a bad idea for a non-biological parent to adopt the child of another member of the relationship, as one of the effects of adoption is to strip the biological parent of his or her status as a parent, and of all rights and obligations a parent has with respect to a child.

Parentage is likewise limited to two persons, except in provinces, like British Columbia, that allow a child to have up more than two legal parents where the child is born as a result of assisted reproduction processes. In BC, the Family Law Act allows a child to have up to five parents: one or two intended parents, a donor of ova, a donor of sperm and a surrogate mother.

However, in some provinces it may be possible for non-biological, non-adoptive parents to become a legal guardian of the child, usually by making an application to court. In this way a child could have more than two legal guardians who would all be entitled to make the decisions a parent could make.

Immigration

I'm not going to discuss the federal government's offensive views on "barbaric" — that's the word used in the legislation and press releases — cultural practices; there's actually another, more common problem.

A citizen may sponsor his or her spouse or common-law partner to enter Canada and become a Canadian citizen. The problem here is the federal government's vigilance toward fraudulent marriages. Although people in a polyamorous relationship would likely view themselves as being in a committed, long-term relationship, Citizenship and Immigration does not recognize polyamorous relationships as being spousal or common-law in nature and would view such applications with much scepticism.

(Let me pause here and anticipate certain comments to this post. Yes, I think it is abusive and exploitive to force girls and women into marriage, especially in the case of children. However, I don't think it's for us to judge and label the cultural practices of a community as barbaric. That smacks of arrogance and cultural imperialism; after all, some might say that the federal government's treatment of indigenous peoples is barbaric. Glass houses, yes?)

Entitlements Based on Household Income

People in polyamorous relationships will need to be wary of benefits assessments and legal tests that are based on household income, as the income in question may very well be the income of all cohabiting persons. The benefits that spring to mind in this regard include the Old Age Security Guaranteed Income Supplement, entitlement to welfare benefits and entitlement to legal aid coverage. I'm sure there are others. The legal test I'm thinking of is the test for relief from the fixed child support amounts set out in the Child Support Guidelines on the ground of undue hardship; that test looks at the parents' household standards of living before deciding whether the amount that would normally be paid is too much or too little. Again, I'm sure there are other that I haven't thought of.

Sharing Property

More than two people can be legal owners of most things, including bank accounts, cars, houses and companies. That's not really the problem for polyamorous families. The problem has to do with how the laws about family breakdown divide family property.

Canada Pension Plan credits are often but not always equalized when married or unmarried spouses divorce or separate. The Canada Pension Plan legislation says that these credits can be equalized on the application of "either" spouse or common-law partner, and talks about the entitlements of "the two persons," which implies that CPP credits can only be equalized between two spouses.

As I mentioned earlier, most provinces exclude people who aren't married from their rules about property division. However, in the provinces that give unmarried spouses the same property rights as married spouses, the legislation tends to talk about equal half interests. The British Columbia Family Law Act says that "both spouses" are entitled to family property and that "on separation, each spouse has a right to an undivided half interest in all family property." Now, this doesn't mean that unmarried spouses in polyamorous relationships can't share the family property, but it does mean that it pays to be the first one out. I expect that the first to leave would get half the family property, with the next to leave getting half of the remaining half, and so on.

Anything Else?

I'm sure that there are things I'm overlooking, and I'd really be interested in your input, especially if you are or have been in a polyamorous relationship and have had experienced legal problems as a result of the nature of your relationship.

18 February 2015

Separation, Divorce or Restructuring?: An Argument for the Latter

The words we use when talking about legal concepts carry a lot more meaning than the dictionary definition of those words; the words we use often reveal something about how we think about those ideas and the fog of cultural values with which they are associated. Language has a surprising impact on how we understand and interact with the world, and I am often astonished by how much my perception of a particular legal concept can change simply by choosing different words to talk about it.

Take, for example, the language we use to describe the care of children after separation. (I'm choosing my words intentionally here.) The federal Divorce Act talks about these legal concepts in terms of "custody" and "access." This was the language used in the original Divorce Act, which became law in 1968, and was a lazy, unevolved borrowing of the terminology used in the first commonwealth legislation on divorce, the United Kingdom's Divorce and Matrimonial Causes Act of 1857. British Columbia's former Family Relations Act, which became law in 1972, talked about custody and access as well, but included an additional term, "guardianship."

What's custody, then, and what's a custodian, a person who has custody of something? In civil law, custody means the right to possess and control an object. In criminal law, custody means the lawful detention of a person against his or her will. However, custody also carries with it somewhat of a flavour of an obligation to care for the person or thing that the custodian controls. The criminal sense of custody implies a duty to attend to and protect the person in custody, and the civil sense can sometimes imply a duty of preservation.

This duty of care business lies at the heart of guardianship, a concept which comes from the civil law of the Roman Empire and first made its way into English law by way of the Guardians in Socage Act of 1267. Although a guardian can be a guardian of property — this is essentially what a trustee does — we usually use the term in relation to persons, and in family law this means a duty to see to the wellbeing of a child and the preservation of the child's property.

Under the Family Relations Act, however, guardianship took a back seat to custody, largely because the Divorce Act only spoke of custody and the Divorce Act is paramount legislation, meaning that when the two laws conflict, the federal law wins. This had the effect of focussing the legal arguments of separated parents on the possession, rather than the care, of their children. Four things flowed from this in terms of the cultural values relating to separation:
1. Custody was often seen as a property right, which distracted parents and lawyers from the best interests and wellbeing of the parents'  children.  
2. The "right" in question belonged to the parent rather than to the child.  
3. Arguments about custody often resolved into an all-or-nothing proposition, which dramatically heightened the perceived consequences of "winning" and "losing" a custody battle and caused parents to invest tremendous importance in the outcome. 
4. The role of the parent who wound up only with access was inevitably trivialized relative to that of the parent who had custody.
Thankfully, at some point in the early 2000s family law lawyers drafting agreements and, somewhat later, orders, began using less conflict-laden words to describe the legal concepts involved in custody, access and guardianship. Access started to be discussed as "the parent's time with the child," "the time the child is with the parent," or better yet "parenting time" and "caregiving time." Guardianship was framed as "parenting responsibilities" and "decision-making duties." Custody could be referred to as "the primary residence of the child" or "the home where the child usually lives," or something to a similar effect.

This sort of language held the virtues of being child-focussed, rather than parent-focussed, and of talking about the care of children in terms each parent could get behind. It also had the effect of transitioning custody from an all-or-nothing choice between polar alternatives to a more fluid range of potential arrangements. (It was, in my experience, far easier for my clients to agree that the other parent would have the child's primary residence — in appropriate circumstances! — plus a certain amount of time with the child than to agree that the other parent would have custody of the child.) Most importantly, it also made family law disputes easier to settle by pulling the schismatic venom from the old language used to describe the care of children.

What was most interesting, in my view, was that the judges dealing with family law matters got on board with the new approach to language in fairly short order. There were plenty of legal arguments to be made that "primary residence" did not mean custody and that "parental decision-making" did not imply the range of legal rights involved in guardianship, yet these arguments rarely saw the light of day. Judges were actually prepared to make and endorse orders using this sort of language rather than the mildewed and conflictual language of custody and access.

The point I'm trying to make here is that this change of language had a profound impact on how lawyers, mediators, arbitrators and judges approached disputes about children, and it had a consequential impact on how parents viewed these disputes as well. Ultimately, this helped to decrease conflict between parents and made it easier to settle arguments that might have escalated out of control using the old terminology. Interestingly, the new language eventually received the government's seal of approval in 2011 with the new Family Law Act, which talks about parents who are the guardians of the children and in that capacity have "parental responsibilities" and enjoy "parenting time" with their children.

There's another change of language I would like to propose which concerns how we think of family breakdown, particularly in the context of family law.

"Separation," "divorce" and even euphemisms like "family breakdown," "splitting up" and "breaking down" are all ways of talking about the end of a romantic relationship, and reveal quite a lot about how we think about, and the fog of cultural values we associate with, the end of such relationships. These terms are all synonyms for severing, disconnecting, detaching, cutting off, sundering and a host of similar ideas; they imply an terminal ending, the cessation of one state and the commencement of another, entirely different state.

Conceptualizing family breakdown as a conclusive rupture of what was once a whole is fine for couples who are casually dating or in a more serious cohabiting relationship but childless. After all, the people in these relationships have a reasonable interest in entering new relationships and moving on with their lives. However, this way of thinking about family breakdown strikes me as problematic for couples that are financially interdependent and couples who have children, particularly for the latter.

Parents rarely have the luxury of watching their former partner ride off into the sunset and washing their hands of the relationship. Whether the child was intended or not, becoming a parent entails a lifelong commitment to care for and nurture that child and almost always necessitates a lifelong relationship with the child's other parent, and this is where the wheels fall off the concept of family breakdown as terminal end: the legal end of the parents' relationship might be the child's emancipation and achievement of financial dependence, but the emotional end is rarely so definitively achieved. Most parents want to be there when their adult child marries, becomes seriously ill, has a child, graduates university, declares bankruptcy or receives professional accolades. As a result, not only does a parent's relationship with a child never disconnect, detach, sunder or rupture, neither do most parents' relationships with each other.

It's not only emotionally unhealthy to conceptualize the breakdown of parents' relationships as a termination, it's legally unrealistic as well. I worry that thinking of final orders in family law matters involving children as actually "final" is self-deceptive and sometimes grossly optimistic. (This is one of the things that makes family law so different from other areas of the civil law, where cases have a both a beginning and an actual, conclusive end.)

A few years ago, I was talking to Jerry McHale Q.C., a former assistant deputy ministry of the British Columbia Ministry of Justice and presently the Lam Chair in Law and Public Policy at the University of Victoria, about justice reform and he described family justice as essentially involving the "restructuring" of families, and this is the change of language I propose.

Although I'd probably practiced family law for ten years by the time of this conversation, Jerry's insight, as simple as it was, crystallized my approach to family law. It elegantly points out that where a family includes children, the "family" does not separate or divorce or breakdown. Families restructure, and my job as a family law lawyer, mediator and arbitrator was to help families restructure and reorganize themselves. My job was to help my clients work out: how the same pool of property and debt would be used and managed by the couple now that they were living apart; how the same financial inputs that the couple had before living apart would be spent maintaining two separate homes; and, how the same parenting resources and commitments that the couple had while living together would be allocated and optimized now that the couple were living apart.

In essence, thinking of separation and family law dispute resolution processes as "restructuring" recognizes the continuation of the separated family as a family, although a family living in two different homes. I can think of at least five benefits that might arise from the constellation of values this way of thinking suggests:
1. It encourages a recognition and holistic view of the multiple relationships that exist within the family, between parents, between siblings and between parents and children. 
2. It discourages an adversarial approach by recognizing the continuing existence of the family and by framing separation as a transition rather than a termination. 
3. It discourages positional attitudes based on self-interest by recognizing that the constituent elements, financial and parental, that supported the family before separation are the same and only constituent elements available to support the family after separation.
 4. It expands the circle of interested parties, normally limited to the parents who are the combatants in the legal dispute, to include their children.
5. It encourages the legal and mental health professionals involved in family law to conceptualize their roles as supporting the family as a whole through its transition from one home to two, rather than as advancing the interests of only one member of that family.
This seems to me to be a healthier approach to separation and dispute resolution, an approach that is child-centred and emphasizes the wellness of the changing family as a whole, than the present approach which is predicated on conflict and dwells more on the self-interest of the individual parents than on the interests of their children. What do you think?

17 January 2015

How to Tell the Kids You're Separating

Alyson Jones, a well-respected West Vancouver family and child counsellor, collaborative coach, parenting coordinator, parent educator and author, has published an article in the Huffington Post about how parents can tell their children that they're separating. Most parents find telling their kids about their separation to be extraordinarily challenging. In fact, noted clinical psychologist Joan Kelly has found that a ridiculously small number of children, less than 20% if I recall, are told anything about what's going on between their parents and that this can have negative short- and long-term consequences for children's wellbeing.

I won't spoil Alyson's helpful article — you really should read it — but here's a short digest of her main points:

1. Prepare for the talk by meeting with a mental health coach expert in parenting issues.

2. Tell the children together. Take the talk seriously; don't be too casual in your approach.

3. Although you shouldn't be afraid of your children's emotional reaction, you can't get carried away by your own; be strong.

4. Tell the children that you both love them and that this will never change.

5. Tell the children what will be different in their lives and what won't.

Gary Neuman's book, Helping Your Kids Cope with Divorce the Sandcastles Way, is another helpful resource on this subject.

15 January 2015

Court of Appeal Releases Helpful Decision on Relocation under the Divorce Act

The British Columbia Court of Appeal has just released a decision on relocation under the Divorce Act that will be very useful for practitioners and anyone researching the issue. Relocation cases, also known as mobility cases, happen when one parent wants to take the child and move a significant distance away from the other parent. Most of the time, the staying parent objects to the move because of the effect the distance will likely have on his or her relationship with the child; it is terribly difficult, if not impossible, to maintain a close relationship with a child when contact is reduced to a telephone call once a week and, depending on the distance, weekend visits once every two or three months.

In T.K. v R.J.H.A., the parties were married and the wife sought to move from Victoria to Toronto with the two children. The trial judge considered the wife's claim under the Divorce Act rather than the Family Law Act, and ultimately concluded that it was in the children's interests to continue with the shared parenting arrangement that had prevailed previously. The wife appealed this result.

I don't think it's necessary to say much about this case, as the law, at least the law emanating from the Court of Appeal, is fairly well settled. The case, however, should be read and is very helpful for:

  • the court's excellent survey of the leading appellate cases on mobility; 
  • confirming that Gordon v Goertz remains the leading case for mobility applications heard under the Divorce Act;
  • addressing the restricted circumstances under which the reasons for a proposed move may be considered under Gordon; and,
  • discussing the double-bind that can arise if there is a factual presumption in favour of the status quo and against relocation.
The cases reviewed in T.K. include Nunweiler v Nunweiler, Falvai v Falvai, S.S.L. v J.W.W., Hejzlar v Mitchell-Hejzlar and Stav v Stav, appeal cases all. The court's description of the law on relocation as a "jurisprudential minefield" is apt.

12 January 2015

Quickscribe 2.0: Legislation service training session coming up, register now

Quickscribe Services is offering a free lunch-and-learn training session on its excellent legislation tracking and research service, Quickscribe 2.0, which I've written about elsewhere. The session qualifies for one CPD credit  a will be held by webinar at noon on Wednesday 14 January 2015.

Quickscribe 2.0 offers access to all provincial, and some federal, legislation and regulations, without point-in-time capabilities, tracking of pending and in-force amendments and speedy consolidations. Public annotations are provided by leading practitioners; users can also make private annotations available only to themselves or only within a firm. The service features a cool tracking feature that will alert you to amendments and new annotations.

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Register for the training session on Eventbrite.

05 January 2015

Supreme Court Releases Important Decision on Jurisdiction in Property Cases Under the FLA

Over the winter break, Madam Justice Donegan of the British Columbia Supreme Court handed down her judgment in Cockerham v Hanc, an  important decision discussing some of the more difficult parts of the new Family Law Act on when the court should take jurisdiction in disputes about property division and spousal support. "Jurisdiction" has a number of meanings. For the purposes of this post, I mean jurisdiction in the sense of the court's authority to hear a particular case when the same case could potentially also be heard by a different court. Courts don't like to be stepping on each other's toes — with good reason! — and whether to take jurisdiction when jurisdiction is challenged is among the more important and more difficult decisions the court has to make.

Cockerham involved an unmarried couple who began to live together in Ontario in 2007 and separated in early 2014, following which Cockerham, who was unemployed, moved to British Columbia while Hanc stayed in Ontario where his job was. Cockerham started court proceedings in British Columbia a few months later, following a contact from Hanc's lawyer in Ontario. In her claim, Cockerham asked for:
  • an equal division of the family property, including a house and a condominium in Ontario;
  • an interest in Hanc's other property;
  • an equal apportionment of responsibility for her student loans, amounting to some $200,000; and,
  • spousal support.
Hanc replied to Cockerham's claim with a Jurisdictional Response, a court form under the Supreme Court Family Rules which is filed when a party to a lawsuit, usually a respondent, believes that the court should not or cannot take jurisdiction in the case. Hanc subsequently applied for an order under SCFR 18-2 that Cockerham's case be dismissed or suspended, "on the grounds that this court does not have jurisdiction or that the court ought to decline to exercise its jurisdiction," and it is this application which gave Madam Justice Donegan reason to consider some of the more complicated parts of the Family Law Act.

The reasons for Hanc's application are probably obvious from the short facts I've given. Here, however, is the court's concise synopsis:
"[26] Mr. Hanc submits that the appropriate forum for these issues to be decided is Ontario. The parties resided in Ontario until their separation, when Ms. Cockerham moved to Kamloops. Mr. Hanc has no ties to British Columbia and owns no property here. He is not, and has never been, a resident of British Columbia. He has no connection to this province. With respect to Ms. Cockerham’s claim for spousal support, Mr. Hanc submits that it must be claimed pursuant to the provisions of the [Interjurisdictional Support Orders Act]. The [Family Law Act], he submits, does not empower a British Columbia court to make an original order for support against a non-resident.

"[27] With respect to the claim for division of family property and debt, Mr. Hanc asserts that there is no real and substantial connection between British Columbia and the facts on which the proceeding against him is based. As such, he submits that this court lacks territorial jurisdiction under either the provisions of the Court Jurisdiction and Proceedings Transfer Act ... or the FLA. In the alternative, if the court determines that it does have jurisdiction in respect of this claim, Mr. Hanc submits that this court ought to decline jurisdiction in favour of Ontario."
Fair enough. Now the Court Jurisdiction and Proceedings Transfer Act, which deals with the court's authority to hear a case, has been around since 2003. We've had enough court decisions on the act to understand it fairly well. The Family Law Act, on the other hand is fairly new and the parts of the act that deal with property located outside the province, and the ability of British Columbia courts to make orders about that property, are ridiculously complex, which is what makes this decision so important. If you want to read them in their entirety for yourself — which you should — look for Division 6 of Part 5. It's harder to read than the federal Income Tax Act, and just as likely to keep you awake at night.

Determining Whether to Take Jurisdiction under Part 5 of the Family Law Act

Here is the step-by-step analysis taken by Justice Donegan with respect to the property portion of Cockerham's claim.
1. The burden of proving that the court has the jurisdiction to hear a case is on the person who claims that the court has jurisdiction. (Para. 31) 
2. The first place to look is normally the Court Jurisdiction and Proceedings Transfer Act, unless there is legislation that applies to the case which specifically addresses the jurisdiction issue. (Para. 32) 
3. The Family Law Act specifically addresses the jurisdiction issue at Division 6 of Part 5. (Para. 33)  
4. The test for the court to decide whether it should make orders under Part 5, the part of the act dealing with property and debt, is set out in s. 106. (Para. 42) Here's what s. 106 says:
(1) This section applies if an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction. 
(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met: 
(a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim; 
(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction under this Part; 
(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started; 
(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.
   (3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:
(a) property that is the subject of the proceeding is located in British Columbia; 
(b) the most recent common habitual residence of the spouses was in British Columbia; 
(c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.
   (4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. 
(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following: 
(a) [Repealed. 2014-9-15(b)]. 
(b) the relative convenience and expense for the spouses and their witnesses; 
(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding; 
(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals; 
(e) the extent to which an order respecting property or debt
(i) made in another jurisdiction would be enforceable in British Columbia, and 
(ii) made in British Columbia would be enforceable in another jurisdiction;
    (f) the fair and efficient working of the Canadian legal system as a whole; 
(g) any other circumstances the court considers relevant.
   (6) A determination of authority under subsection (2) or of whether to decline jurisdiction under subsection (4) is to be made solely by reference to this section.
Bit of a mouthful, isn't it? 
5. However, under s-s. (1), s. 106 only applies if an order about property division between the same people can be made in more than one jurisdiction. (Para. 46) 
6. If s. 106 applies, the court must then decide whether one or more of the conditions in s-s. (2) are met, giving it the authority to make orders under Part 5. (Para. 49) 
7. Even if the court has jurisdiction under s. 106(2), under s-s. (4) it must then decide whether it should exercise that jurisdiction or "it is more appropriate for jurisdiction to be exercised outside British Columbia," considering the factors set out in s-s. (5). (Paras. 57 and 59)
Application to the Case

Following this reasoning, the judge held that Cockerham had the burden of establishing that the British Columbia court could take jurisdiction over property mostly located in Ontario. She held that the Family Law Act has specific provisions addressing jurisdiction over that property and that the Family Law Act applied rather than the Court Jurisdiction and Proceedings Transfer Act.

She then turned to s. 106 and concluded that the section applied to the case before her as orders between Cockerham and Hanc about the family property could be made in both Ontario, where the parties had lived during the whole of their relationship and where the bulk of their property was located, and in British Columbia, where Cockerham lived now and where the proceeds of an RRSP account and some jewelry were located.

The judge then decided that Cockerham was "habitually resident within British Columbia," under s. 106(2)(c), which would allow the court to take jurisdiction and make orders about the Ontario property under Part 5.
Habitual Residence
I'm going to pause here to dwell on "habitual residence" and "ordinary residence" for a moment. These terms are used in the Court Jurisdiction and Proceedings Transfer Act, pop up in the case law about jurisdiction all the time, and can be confusing. Here's Justice Donegal's handy summary of the case law, cites omitted as usual:
"[51] What is meant by habitual residence? 'Habitual' and 'ordinary' residence are two expressions that have been used interchangeably ... 
"[52] In [S.R.L. v. K.J.T.] Madam Justice Fenlon summarized the principles governing the determination of ordinary residence at para. 30 as follows:
I now turn to the principles governing the determination of ordinary residence.
a) Preponderance of time spent at a residence is not determinative; 
b) A person may be ordinarily resident without being actually resident; 
c) It is where a person regularly, normally or customarily lives his or her customary mode of life as opposed to a special, occasional, or casual residence; 
d) It is where a person intends to make a home for an indefinite period; an intention to reside there permanently is not required."
Accordingly, Her Ladyship concluded that:
"[53] On the basis of these authorities, I am satisfied that at the time of filing her claim, Ms. Cockerham was habitually resident in British Columbia. 
"[54] In March of 2014, Ms. Cockerham left the home she had previously shared with Mr. Hanc in Ontario. With nowhere to go, she moved to [city], British Columbia and into the home of her mother and step-father, residents of [city] for several years. Having spent time here in the past with family and friends, it was a place familiar to her, a place where she now receives financial and emotional support. 
"[55] Ms. Cockerham's evidence is clear that she is not a visitor or tourist here — this is her home. Her activities following her arrival here all support the conclusion that British Columbia is where she now normally and customarily resides. She obtained a British Columbia driver's licence. She secured a family doctor, who is currently treating her for a medical condition. She has applied for a multitude of jobs in [city] in fields related to her degree. She has significant and meaningful family ties here. That Ms. Cockerham may be accepted to a residency program next year that may see her away from [city] temporarily does not affect a finding that she was, and remains, habitually resident in British Columbia pursuant to s. 106(2)(c) of the FLA."
However, although the judge held that she could take jurisdiction under s. 106(2)(c), she declined to exercise that jurisdiction in favour of the courts of Ontario under s. 106(4):
"[61] Other than the engagement ring that Ms. Cockerham kept and a small RRSP that she has now cashed and spent, the property and debts at issue are all located and based in Ontario. Mr. Hanc's real and other property is all located in Ontario. Ms. Cockerham's claims, as they have been pled, relate substantially to that real property, but also include claims to Mr. Hanc's RRSPs, pensions, chattels, insurance, savings, business interests, options, shares, and club memberships. Neither party owns any real property in British Columbia. 
"[62] If this matter were to proceed in British Columbia, the inconvenience and expense to the parties would be very high, particularly to Mr. Hanc. The parties lived their lives together in Ontario. Civilian witnesses that may be required would largely be from Ontario. Mr. Hanc's financial information is all in Ontario. Expert witnesses from Ontario would be required in relation to appraisals of the real property and possibly his other assets. The significant family debt that is claimed is based upon a contract signed by the parties in Ontario. Bank representatives involved in the contract and/or in keeping of the records may be required to testify. To hear this matter, with nearly all Ontario witnesses, would be very inconvenient and expensive to many people, significantly Mr. Hanc. 
"[63] Further, s. 108 of the FLA applies to this case and leads to the inevitable conclusion that the applicable internal law that would apply to Ms. Cockerham's claims under Part 5 of the FLA is the law of Ontario."
Of course this means that we need to talk about s. 108 as well.
Applicable Law
Section 108 is another difficult part of Division 6. In a nutshell, when the court takes jurisdiction under s. 106, s. 108 is used to figure out the law that should be used to divide the property, which might be the rules about the division of family property set out in the rest of Part 5 or might be the laws of the jurisdiction in which the parties had their "last common habitual residence" — the last place they lived together. Here's s. 108, which is just as difficult to read as s. 106:
(1) In this section, "regime of community of property" means a system of law, including a regime of partnership of acquests, in which property owned or acquired and debt owing or acquired during the relationship between the spouses 
(a) are deemed to be owned or owing by both spouses, and 
(b) are divided, on separation of the spouses, as if both spouses equally owned the property or owed the debt,
but does not include a regime of separate property or a system of law under which a spouse's interest is deferred until or after the occurrence of an event that signifies the end of the relationship between the spouses. 
(2) If the Supreme Court takes jurisdiction under this Division, the Supreme Court must act in accordance with the rules set out in this section. 
(3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement. 
(4) The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement. 
(5) Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property. 
(6) If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship.
In other words, if the parties have an agreement about property, their property should be divided according to their agreement. If the parties used to live in a place that had rules like the old Family Relations Act, where all property used for a family purpose was divided, whether bought before or during the relationship, those are the rules that should be used. If neither of these situations apply, you then have to figure out the "proper law of the relationship," according to the test set out in s. 107:
The proper law of the relationship between the spouses for the purposes of section 108 is 
(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence, 
(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or 
(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.
The judge's conclusions under s. 108 merely confirm her decision to decline to act made under s. 106(4):
"[64] Section 108(2) mandates that if the court takes jurisdiction under Division 6 of Part 5, it must act in accordance with s. 108. As there is no agreement between the parties regarding the applicable internal law, only subsections (5) and (6) are relevant. ... 
"[65] The parties' first common habitual residence was in Ontario. It was their only residence together where they lived and participated in everyday family life. If Ontario has a 'regime of community property', the applicable internal law is that of Ontario. If Ontario does not have a 'regime of community property', the applicable internal law is determined by s. 107 of the FLA. Also known as the 'proper law' of the spousal relationship, this too would be Ontario law because Ontario is the jurisdiction where the parties had their most recent common habitual residence. 
"[66] As I have concluded the law of Ontario would apply to Ms. Cockerham's claims under Part 5, additional inconvenience and expense would be required if this matter proceeded in British Columbia. As Mr. Hanc points out, an expert in Ontario family law would be required to offer opinion evidence on the law of property and debt division."
I should mention that at this point in her reasons, the judge analyses Cockerham's claim under the Court Jurisdiction and Proceedings Transfer Act, reaching an identical conclusion. Her analysis of this act will be helpful for anyone looking into whether there is a "real and substantial connection" — another cryptic phrase bedevilling the case law on jurisdiction! — between British Columbia and the facts of a particular case. 

Determining Whether to Take Jurisdiction under Part 7 of the Family Law Act

As for Cockerham's claim for spousal support — spousal support and child support are covered in Part 7 of the act — the court rejected this as well, on the basis that the Interjurisdictional Support Orders Act, a law which has been passed by each province and territory, provided the appropriate mechanism for a resident of British Columbia to obtain a support order against someone living in another province.

Following the Court of Appeal's decision on the Interjurisdictional Support Orders Act and the Family Relations Act in a 2006 case called Nurani v Virani, Justice Donegan held that:
"[92] Neither the [Supreme Court Family Rules] nor the FLA alters the [Interjurisdictional Support Orders Act] scheme or renders it now inapplicable. Express statutory language would be required for such a result. No such language exists. Although Ms. Cockerham argues that the ISOA mechanisms are inconsistent with the object of the Family Rules, describing them as slow and cumbersome, one can also see how its scheme is consistent with the object as well. A process whereby no court appearance in British Columbia or another jurisdiction is required in order to obtain a support order could be seen as promoting a just and inexpensive determination of the issue. 
"[93] In any event, in the absence of express statutory language rendering the ISOA inapplicable in light of the FLA, [the Court of Appeal's decisions in Nurani] remain binding authority on this court. Mr. Hanc is not a resident of British Columbia, nor has he ever been. He has no connections to British Columbia whatsoever. In these circumstances, this court has no jurisdiction to make an original order for support against him pursuant to the FLA. ... Ms. Cockerham has the mechanisms of the ISOA available to her should she so chose."
Summary

I am grateful to Justice Donegan for her clear analysis of Division 6. It is a very difficult part of the act and her decision in Cockerham is, I believe, the first treatment of the division by the court. Here is a short summary of the steps required to analyze a claim involving property located outside British Columbia.
1. The burden of proving that the court has the jurisdiction to hear a case lies on the person who claims that the court has jurisdiction.
2. Claims about the interests of spouses in property located outside of British Columbia brought under the Family Law Act should be analyzed under that act rather than the Court Jurisdiction and Proceedings Transfer Act.
3. Determine if s. 106 of the Family Law Act applies by examining whether an order about property division between the same people can be made in more than one jurisdiction. 
4. If s. 106 applies, determine whether one or more of the conditions in s-s. (2) are met to give the court authority to make orders under Part 5 of the Family Law Act
5. If the court has jurisdiction under s. 106(2), determine whether the court should exercise that jurisdiction or leave the matter to a court in another jurisdiction under s. 106(4), considering the factors set out in s. 106(5). 
6. If the court decides to act, determine the law to apply under ss. 107 and 108. Note that the applicable law may be a factor in determining whether to decline to act under s. 106(4).
My thanks to my colleague Mary Fus, a lawyer with a thriving family law practice in Kamloops, for bringing this important case to my attention.