07 November 2017

Blameworthy Conduct in the Extreme – When retroactive child support can be ordered for more than three years


by Karen Redmond

A.J.D. v. C.D. 2017 BCSC 1559

In this decision of the BCSC released September 1, 2017 the wife applied for retroactive child support for 12 years, dating back to the signing of the separation agreement in 2003.  The separation agreement did not provide for annual exchange of financial information or annual updates of child support.  Both children had lived with their mother and the father had stated his income as $90,000 and provided misleading information about his income at the time of signing of the agreement.  He continued to pay child support based on the income information in the separation agreement.  The mother was not aware that the child support could be reviewed annually and took no steps to apply for disclosure of income information from the husband until he unilaterally reduced his child support in 2015 when the oldest child turned 19.  His income had increased significantly between 2003 and 2015 ranging from $105,551 to $772,127. 

The court found the husband’s conduct blameworthy in the extreme, citing the leading case D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.] and the exceptions to the principles outlined in D.B.S.  Although the Court in D.B.S. said that it would usually be inappropriate to delve too far into the past, to award child support retroactively for more than three years, the court said there are circumstances where the payor’s conduct does warrant such awards.  In the A.J.D. case Madam Justice Young ordered retroactive child support for 12 years for a total payment owing by the husband of $522,408 taking into account the circumstances of the children, their financial need and the present financial situation of the husband and the wife. 

23 October 2017

FAMILY LAW LAWYER ORDERED TO PAY COSTS PERSONALLY


GUEST POST
BY Georgialee Lang


 

FAMILY LAW LAWYER ORDERED TO PAY COSTS PERSONALLY

 

Practicing family law is difficult enough without having to be wary of opposing counsel’s wily tactics. One of the cardinal rules of litigation is to provide notice to opposing counsel (or to an unrepresented litigant) of any steps you intend to take in court to pursue your client’s claims. To proceed without notice, also called “ex parte”, ought to be a rarity, particularly in the emotionally charged dynamics of a family law proceeding.

Toronto lawyer and former 2010 mayoralty candidate, Rocco Achampong, was handling a high-conflict custody matter that resulted in a judge ordering him to pay costs of $1,200.00 to his client’s husband for “sharp practice”. Such an order is extremely rare and only made when a lawyer’s conduct has been egregious.

The case started with Mr. Achampong’s client, who was living in the family home, obtaining an ex parte order for custody of her two-year-old daughter from the Ontario Court of Justice. That action resulted in her husband bringing a cross-motion for the same order, however, the parties talked through matters and decided to reconcile. All court action was terminated and the temporary custody order in favour of the mother was vacated.

Their reconciliation, however, was brief and ended after police were called to the home for an alleged incident of domestic violence. Promptly thereafter, the father brought another application to court seeking custody of his child and alleged that he and his wife had previously agreed they would share custody, but she had reneged on their oral agreement. After filing the application but before he obtained a fresh court order, he went to the child’s daycare and brought the child to his home.

This triggered a landslide of emails, letters and telephone correspondence between the parent’s respective lawyers, all of which adopted a conciliatory tone as the lawyers made efforts to resolve their clients’ problems without further court action. Different resolution options were canvassed including a 4-way meeting with clients and counsel, a mediation session, or an expedited return to court to have a judge assist.

However, while father and his counsel, Mr. Schuman believed their negotiations were bearing fruit, Mr. Achampong was hurriedly preparing court documents, while lulling opposing counsel into believing that the only issue between them was the selection of a mediator. 

In the meantime, father’s counsel had obtained an expedited hearing date as well, as a back up, and delivered his application documents to Mr. Achampong.

Despite this, Mr. Achampong obtained a custody order from the Ontario Superior Court of Justice, a higher court in Ontario with the same jurisdiction as the Ontario Court of Justice to make child custody orders. 

He did all of this without notice to opposing counsel, and without advising the judge that a new hearing date had already been secured in the lower court. Neither did he tell the Court that as recently as that morning, he had been involved in ongoing settlement discussions with father’s counsel.

Mr. Schuman was furious with the betrayal and reported Mr. Achampong to the Law Society. His client then brought an application for costs against Mr. Achampong personally. The Court made the following observations:

“Mr. Achampong never advised Mr. Schuman that he was wasting his time in the Ontario Court of Justice since his intention was to have the case heard instead in the Superior Court of Justice. He had an obligation to do so. Even if his client instructed him to proceed in the Superior Court of Justice (likely the case) and not to immediately advise Mr. Schuman (this is unknown), he cannot hide behind the excuse of client instructions. It was his obligation to let Mr. Schuman know that he would be proceeding in a different court, so that Mr. Schuman did not prepare needlessly for a case that would be stayed.

Mr. Achampong demonstrated poor judgment in exercising his professional obligations to Mr. Schuman on October 12, 2012. It is apparent from a review of the correspondence of counsel on that day that they were discussing urgent mediation to try and resolve the temporary issues. Mr. Schuman was taking steps to expedite this process. While Mr. Achampong asked for his client to be able to speak and see the child, there was no indication that he would be immediately going to court to obtain relief. It was certainly reasonable for Mr. Schuman to believe from the correspondence that the process would be mediation first, and if the case was not adjourned, that the temporary motions about parenting arrangements would be argued on Tuesday, October 16, 2012, in the Ontario Court of Justice.”

Mr. Achampong compounded his ethical breach by arguing before the Court that he had done nothing wrong. Another lesson learned. Best to fall on one’s sword than to justify improper behavior. The costs order is miniscule compared to the embarrassment of the national publication of his breach of professional ethics.

My guess is that in his zeal to have his client’s child returned, he forgot about his professional obligations as an officer of the court. In my view, no client’s case is worth a breach of ethical standards.

 

04 October 2017

Do You Need to Prove 'Ouster' in Order to Make a Claim for Occupational Rent in BC?



Karen Redmond
The Oxford Dictionary defines ouster as:   ejection from a property, especially wrongful ejection.  In the context of family law, it means that one person has been tossed out of the family home forcing them to live elsewhere.  In these situations, the person having been tossed, often wants to collect money from the ‘tosser’, and this is called occupational rent.  The case law has been relatively consistent about what is required in order to make a claim for occupational rent, and we would typically tell our clients that they had to prove they had been ‘forcibly ejected’ in order to support a claim for occupational rent.   
In McFarlen v. McFarlen, 2017 BCSC 1737,  a recent decision of Mr. Justice Jenkins released September 28, 2017 the finding of the court was that it was not necessary to prove that a party had been ousted in order to succeed with a claim for occupational rent.  The McFarlen’s were married for only two years but had lived together for 15 years prior to their apparently ill-fated nuptials.  They were both 53 at separation and did not have children together.  The central issue in the case was the claim by Mrs. McFarlen that her husband should pay occupational rent, because he had lived in the former family home since the date of separation, up to and including the eventual sale.  The issue was, had she been outsted, and more particularly, if she had , did she have to prove it in order to make her claim? 
Mr. Justice Jenkins reviewed the oft cited case of Ross v. Ross, 2013 BCSC 1716 which clearly lays out the principles applied in cases where claims for occupational rent were made.  At paragraph 47 of Ross:
From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:
1.     Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.
2.     The remedy is exceptional and should be used cautiously.
3.     The following factors, where relevant, are appropriately considered:
·        The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good, at para.90)
·        Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16--17; Wilgosh at para.108).
·        If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106; Good at para.90, and Peltier at para.16)
·        Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier, at paras. 16-17; Wilgosh at para. 106)
·        Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). ….
·        Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17)
·        Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).
4.     The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.
And continuing at paragraphs 48 through 50, Justice Verhoeven wrote:
“[48]      A similar list of considerations is set out in Higgins v. Higgins (2001), 19 R.F.L. (5th) 300, at para. 53 (S.C.J.), and is regularly applied in Ontario. Higgins expressly states that ouster is not required. Similar approaches are applied in Alberta, Manitoba, Nova Scotia and New Brunswick: Braglin v. Braglin, 2002 ABQB 816, at para. 3; England v. Nguyen, 2013 MBQB 196, at paras. 74-77; Carmichael v. Carmichael, 2005 NSSC 318, at paras. 49-64; Cripps v. Cripps, 2007 NBQB 2, at paras. 52-57.
[49]      Concepts of occupational rent derived from general property law may be inconsistent with modern family law. In England at para. 74, Johnston J. observed:
To focus on a consideration of "ouster" is to set the development of family law back to the "bad old days" when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court's consideration in exercising its discretion in attempting to value a fair result.
[50]      On the approach used by the other jurisdictions, as I interpret it, the overriding question is whether occupational rent, as a discretionary remedy to be used cautiously, should be utilized in order to achieve justice and equity in all of the circumstances of the case. This approach appropriately places little if any emphasis on the question of fault or blame for the decision of one spouse or the other to leave the matrimonial residence.

In support of the proposition that ouster is not required in order to prove a claim for occupation rent, Mr. Justice Jenkins cited a line of cases including Shen v. Tong, 2013 BCCA 519; Piderman v. Piderman, 2015 BCSC 475; Hodel v. Adams, 2016 BCAC 910.  The Honourable Judge also reviewed a line of cases where the BC Supreme Court had recently found that ouster was in fact a condition precedent to a claim for occupational rent.  At paragraph 20 he concludes that a party is no longer required to prove ouster in order to support a claim for occupational rent:    

"[20] So, is “ouster” a condition precedent to a claim for occupational rent? The authorities suggest that this remains an open question. Based on my interpretation of the law in this province,         I accept that “ouster” is no longer a pre-condition to a claim for occupational rent measured by the cost of alternative accommodation. The statements by Verhoeven J. which have been adopted by McEwan J. in Piderman as well as the statement by Willcock J. in L.M.R v. J.F.R., 187 A.C.W.S. (3d) 775, support this interpretation. My reasoning is reflective of the opinions expressed by Verhoeven J. and McEwan J. in Ross, Piderman and C.M.L.S.- that the proper way to approach a claim for occupational rent is as a discretionary tool to achieve fairness. Such a conclusion is consistent with family law legislation including the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) and the FLA which are not premised upon “fault based” principles. If I have correctly interpreted the law in British Columbia, then a review of the claim can proceed on the basis of equity. If “ouster” is required, this issue would have to proceed to trial to determine whether or not there has been an ouster."

In this writer’s opinion, the courts will still look at ouster in examining the fairness and equity principles, but it is no longer a condition precedent to these types of applications.



11 August 2017

Is child support payable for a child over the age of majority who is attending college or university?


As we approach September, the question is arising more and more frequently in my practice about when a child is still considered to be a dependent ‘child’ and in need of financial support if they are attending college or university and not living  at home. As a mother of three ‘children’, ages 19, 22 and 24, all of whom are pursuing post-secondary studies, I can tell you first hand that there is no clear point at which children are no longer in need of financial aid from their parents.  The case of Kiristmanson v. Kristmanson 2012 BSC 1750 is helpful in this regard. 

From the Court’s perspective, payment of child support for a child over the age of majority depends on the facts of each particular case. 

In six Canadian provinces, the age of majority is 18: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan.  And, the age of majority is 19 in the four remaining provinces and the three territories: British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon.

The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides the following definition for the term "child of the marriage" where a person is over the age of majority:

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

 . . . is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

Case law has interpreted "other cause" to include an adult child in attendance at post-secondary schooling.

The seminal case of Farden v. Farden (1993), 2570 BCSC tells us that the onus rests upon the applicant to establish that the person for whom a support order is sought is still a child within the meaning of the Act Master Joyce, as he then was, provided the following helpful analysis for determining the status of an adult child:

Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances.  It is not a conclusion which follows automatically from proof of attendance at the institution . . . In my view the relevant circumstances include:

(1)  whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

(2)  whether or not the child has applied for or is eligible        for student loans or other financial assistance;

(3)  the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4)  the ability of the child to contribute to his own support through part-time employment;

(5)  the age of the child;

(6)  the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7)  what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8)  at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

In Neufeld v. Neufeld, 2005 BCCA 7 (CanLII), the Court of Appeal expressly adopted the above passage from Farden as being a non-exhaustive list of considerations which apply in cases where the Court is being asked whether support is payable for an adult child.  In Neufeld, the issue was whether support was payable for an adult child pursuing a medical degree.  One of the important factors considered by the trial judge was that the decision to pursue this level of education was in keeping with the family’s pre-separation plans for their daughter. 

The cases tell us that there is no arbitrary cut-off point for child support for adult children, based either on age or level of education.  We know that there is no statutory prohibition against support for an adult child seeking a second degree; determination depends on the facts of each specific case, and Neufeld reminds us there is not a specific or primary piece of the Farden inquiry which will determine the result in any given case. 
So, the answer to the question, "Is child support payable for a child over the age of majority who is attending college or university?", is, as with most family law matters, it depends on the facts of your case.   

08 August 2017

The Presumption of Advancement as an “anachronistic legal principle”


The Presumption of Advancement as an “anachronistic legal principle”

In the recent decision of H.C.F. v. D.T.F. 2017 BCSC 1226, Mr. Justice Voith, in his lengthy (70pg) decision, provides an excellent overview of recent case law on the issue of division of property including excluding property.  He also provides commentary on the intersection between the law and consistency with social change.   The Honorable Judge examines the legislative intent behind the FLA, including the reasons for the expanded definition of spouse, which was specifically intended to include same sex couples.  His Lordship’s thoughtful and logical analysis paints his clear views on the presumption of advancement as an outdated concept, which, should not be allowed to continue, as he says, “in the context of legislation that was intended to recognize and reflect the broader and changed nature of relationships in present day society.”    He says at paragraph 149, “The ongoing application of the presumption of advancement under the FLA would mean that of these various potential forms of relationships, within which all partners are “spouses” for the purposes of the FLA, the only subset of relationship to which the presumption of advancement would apply would be a gift from a man to a woman in a traditional marriage. “  This being a result he calls “incoherent”. 

Get a coffee, sit down and read it.   It’s long but it's an essential and important case. 


26 July 2017

Paying child support in shared parenting cases - the new (ab)normal!


I have written about this issue before but this morning when I was reading a newsletter circulated by the folks at DIVORCEMATE I came across their article on Harder v. The Queen, 2016 TCC 197  I thought it was worth sharing.  Both parents in a child sharing situation need to be aware of the potential consequences of not complying with the requirement that both parents actually and physically pay child support to the other.  The old practice of paying an offset amount, is no longer acceptable. 

"Beware of New Tax Court Ruling The allocation of the “eligible dependant credit” (formerly, the equivalent-to-spouse credit) in a shared parenting arrangement has recently come under intense discussion and scrutiny as a result of a recent decision of the Tax Court of Canada, Harder v. R., 2016 TCC 197. Until this decision, it was generally understood that in shared parenting, so long as any court order or written separation agreement provided that both parties were paying support, even if ultimately a “setoff” payment was made from one to the other for convenience, this would suffice to allow the parties to allocate the credit to the higher income parent. The basis for this understanding came from the Income Tax Act (“ITA”) and various guides and folios published by CRA. It is against this backdrop that the Tax Court of Canada released its Harder v. R. decision, and threw the family law bar into a tizzy. In this case, the parties had two children and had resolved all issues arising out of their separation pursuant to a written consent that was filed with the court. Despite the fact that the consent outlined both parties’ child support obligations in a shared parenting arrangement, and specifically provided that each party would each claim one of the children as a dependant for the eligible dependant tax credit, the Tax Court disallowed the allocation of the credit because ultimately a single setoff payment was paid by the higher income parent to the other. The court held that the “combined effect of subsections 118(5) and 118(5.1) [of the ITA], at a minimum, requires a comprehensive documentary and evidentiary record... Surely cheques, or even their more modern replacement of recurring e-transfers, may evidence a clearly enumerated, reciprocal and mandatory support amount paid by each spouse to the other” (par 11). The unfortunate conclusion of this case is that it now appears necessary to not only provide that both parties are paying support to one another in any written court order or agreement, but the parties must now actually do so, creating the necessary “documentary and evidentiary record”. Aside from the unnecessarily cumbersome two-way exchange of money, this raises concerns where one parent pays his/her share, but the other parent does not. This leads to a particularly ridiculous result when the “deadbeat” parent is the higher income earner - not only would the lower income parent not get the support required, but he/she would be supplementing the deadbeat parent as well! Unfortunately, until such time as the court or the legislators revisit this issue, this is the result with which we are left."


Karen F. Redmond
Family Law Lawyer

19 July 2017

What to do about summer parenting access problems?

As the wildfires burn out of control in BC this summer, so it seems, do the ongoing disputes between some parents about summer parenting time. I wonder sometimes if parents realize how awful it must be for the children to be caught in the crossfire between the 'responsible' adults in their life, all of which is done, supposedly in "the name of love".  I wonder if there is a better way to show love and commitment to parenting without putting a child smack in the middle of your disputes?


If my annoyance is coming across in my writing, I apologize, but it's not surprising given the number of interactions I have had in the past weeks with parents who are so blinded by concerns for their own 'rights' to their children, that they can't see their way to resolving disputes "in the best interests of their child", for what that's worth.  Of course there will be the exceptional cases where lawyers need to be involved, but for the most part, I believe there is a better way to resolve these types of disputes and that is to use professionals who are trained to deal with children and children's issues. 


This is my little plug for parents to use parenting coaches and parenting counselors instead of lawyers, to resolve summer parenting and scheduling problems.  Collaborative Divorce BC has a website that lists counselors and coaches who can help both parents (together!)  to come up with some sort of compromise that doesn't necessitate dragging the children on a sunny summer day to the lawyers office to try to give a statement about what the parent did or didn't do.  Honestly, it feels tragic to me that parents could think that their child actually wants to be involved to the point of making a statement to a lawyer about the other parent. 


If you have a parenting dispute, which even the most skilled parents and communicators will encounter, consider using a mental health professional, a counselor or a parenting coach to assist you.  You and your former partner can sit together to discuss the issue with a counselor, and get some guidance and advice, which you may or may not accept, but isn't it worth a try, for the sake of your child?


Here is the link to the Collaborative Divorce BC Website, where you can find the parenting coaches and counselors: 




http://www.collaborativedivorcebc.com/index.php


and HERE  for child specialists




Karen Redmond
Family Law Lawyer and Mediator