21 October 2015

BCAMI Family Law Arbitrator Training

The British Columbia Arbitration and Mediation Institute is offering training in the arbitration of family law disputes. This five-day, forty-hour course is being run by noted arbitrator Glen Bell, who has long provided the BCAMI's commercial arbitration training, and includes presentations from a number of prominent British Columbia family law lawyers including myself and:
This course will be useful for any lawyer wishing to practice as a family law arbitrator.

I have personally enjoyed arbitrating family law disputes. I appreciate the flexibility the process offers about the style and nature of hearing and the manner in which evidence and arguments are presented, not to mention the intrinsic privacy arbitration provides. Arbitration is a high value alternative to litigation when a family law dispute cannot be settled, and I recommend it to anyone who wishes to keep his or her dirty laundry out of the public spotlight and seeks a speedy resolution.
Dates: 30 November to 4 December 2015 
Place: People's Law School, 900 Howe Street in Vancouver 
Cost: $1,890.00
Note that there may be prerequisites which must be met by those wishing to take the course. This is mentioned on the registration form, but I've been unable to find any details on the BCAMI's website.

19 October 2015

A Different Approach to Parental Alienation Cases: It's Time to Try Something New

Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that just might encourage negotiation and curb the usual headlong rush to trial.

Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional response to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

Rejected parents are generally struggling with the achingly painful loss of a relationship with their children at the same time as they're dealing with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

Favoured parents, on the other hand, seem to react to allegations of alienation with the same degree of strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury lawsuits or shareholders’ grievances. The parties involved in family law proceedings once (usually) trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede even the partial accuracy of those claims.

In a previous post on Slaw, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

Of course, the even more fundamental characteristic shared by all children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be revitalized and enhanced? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of the child's attachment disruption?

There are, I suggest, a number of benefits to be gained from such an approach.

Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s personal problem, and, in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents, as well as rejected parents, to raise the breakdown in the parent-child relationship as an issue that must be resolved to promote the child’s wellbeing in the legal proceedings.

Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few situations that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

It is important to recognize that this approach does not prevent the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children, without the need to allege alienation or counter with allegations of estrangement.

It is also possible to pursue the other remedies typically associated with parental alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour, or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in primary residence or severely truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation allegations and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

A version of this post was originally published in the online legal news magazine Slaw on 16 October 2015.

07 October 2015

Fantastic Elder Law Conference Coming to Vancouver in November: Save the Date!

The Continuing Legal Education Society of British Columbia, Canada's leading providing of continuing professional training for lawyers, and the Canadian Centre for Elder Law are hosting the Canadian Elder Law Conference on 12 and 13 November in 2015. The conference is open to anyone with an interest in the legal and other issues affecting Canada's elders, but will be of most interest to lawyers, financial planners and mental health professionals.

The conference is extremely timely, given Statistics Canada's recent report showing that there are now more Canadians who are older than 65 than those who are under 15. In fact, the baby boomers, the oldest of whom turned 65 in 2011, make up a greater share of the population than any other age group.

The boomers are also the first generation for whom divorce carried only a marginal stigma, as a result of the introduction of the original Divorce Act in 1968. But not only are more older persons divorced or separated than ever before, more are forming new married or unmarried spousal relationships. This poses special challenges for the legal and mental health professionals involved in family breakdown, as we can expect, in the very near future, to be helping more clients with significant physical and mental illnesses, more living on fixed incomes and in poverty, and more requiring institutional or assisted home care. Cases involving persons of retirement age often raise special concerns and competing generational interests about the distribution of income and assets following separation; concerns can also arise about the tension between the interests of employed persons wishing to retire and dependent persons unable to survive without spousal support. Dealing with later-in-life separation also demands a special sensitivity to the needs of women, who have lower incomes than men in general, and are disproportionately affected by separation and divorce.

I've written about the economic consequences of separation and divorce later in life, the federal benefits available to older Canadians and the interplay of spousal support and retirement in a paper for the National Judicial Institute, which you can download (PDF) from the website of the Canadian Research Institute for Law and the Family.

This conference is a must for anyone practicing family law or involved in family breakdown from a financial or therapeutic perspective. The full details, including the agenda, are available on CLEBC's website and CCEL's website, but here's the stuff you need to know.
Place: Pan Pacific Hotel, Vancouver BC 
Date: 12 and 13 November 2015, 9:00 am to 4:30pm both days 
CPD Credits: 12.5 hours, including 2 hours on ethics 
Pricing: Early bird registration of $1,005 ($585 for students) ends 15 October 2015. The registration fee thereafter is $1,110 ($585 students), or $990 if you want to attend by webinar.
Keynote speakers include:
  • Barb MacLean, Chair of the British Columbia Council to Reduce Elder Abuse
  • Isobel Mackenzie, British Columbia's Seniors Advocate
  • Dr. Andrew Wister, Chair of the National Seniors Council
Panelists presenting at the conference include myself and: 
  • Hon. Marion Allan, Clark Wilson
  • Barbara Buchanan, Law Society of British Columbia
  • Deidre Herbert, McLellan Herbert
  • Anna Laing, Fasken Martineau
  • Andrew MacKay, Alexander, Holburn, Beaudin and Lang
  • Catherine Romanko, British Columbia Public Guardian and Trustee
  • Kimberly Whaley, Whaley Estate Litigation
  • Geoffrey White, Geoffrey W. White Law Corporation
The topics to be addressed include:
  • Advance health care planning
  • Whether a national power of attorney registry would help reduce elder financial abuse
  • Update on guardianship law in British Columbia
  • Reporting and responding to suspected elder abuse
  • Physician assisted suicide and health care decision-making
  • Later-in-life separation and divorce
  • Dementia and client competency
  • Class action litigation in elder and estate law
Save these dates and head on over to CLEBC's website to register now. Space is limited.

29 September 2015

Great New Parenting Plan Resource from the American Academy of Matrimonial Lawyers

The American Academy of Matrimonial Lawyers, a group that promotes excellence in the practice of family law, has just published a wonderful new resource on drafting parenting plans.

Child Centered Residential Guidelines is a booklet written by noted psychologist Robin Deutsch, past president of the Association of Family and Conciliation Courts and Director of the Center of Excellence for Children, Families and the Law at William James College, formerly the Massachusetts School of Professional Psychology. Child Centred Residential Guidelines is written in accessible language, offers useful tips and considerations for parenting after separation, and provides:
  • model parenting plans for children of different ages;
  • tips for planning for holidays and vacations; and,
  • guidance on developing parenting plans when a child is being breastfed, a child has special needs, domestic violence or substance abuse is an issue, or a parent is in jail.
The free resource includes sample calendars mapping out the parenting plans it covers.

In its press release, the AAML says that the booklet encourages parents to place the interests of children first and intends to "make the divorce process as focused on the needs of the children as possible," featuring "crucial advice from experts, recommended time schedules that spouses can adapt, and practical suggestions for arriving at a cooperative plan for the entire family." The AAML is to be thanked for developing such a useful resource.

22 September 2015

Parents Who Separate Before Their Child's Birth: Who's a Guardian? Anyone? Anyone at All?

I had a very interesting chat with a colleague yesterday about a hypothetical situation in which a heterosexual cohabiting couple, who are about to have a baby, separate before the baby is born; our conversation centred on who could obtain standing as the unborn child's guardian before moving out. The discussion was very interesting and provided a pretty concrete illustration of a central problem with the language of the Family Law Act on who's a guardian and who isn't, and I thought I'd share what we were talking about.

First off, here are the relevant bits of s. 39:
(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. 
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; 
(c) the parent regularly cares for the child.
This section is really important. According to the provincial government's document, The Family Law Act Explained, this section means that "with few exceptions, the parents of a child who reside with the child are automatically their guardians and do not lose these responsibilities if they separate." The document continues:
  • This section establishes the starting position that parents who live with their child are guardians. This is different from the general rule under the Family Relations Act, which provided that when parents separate, the parent with whom the child usually resided has, by operation of law, sole custody and guardianship of the person of the child. 
  • The change emphasizes that a parent’s responsibility towards their child does not change only because the parents have separated. If the parent was a guardian before separation, the parent remains a guardian after separation, unless the parents make an agreement, or the court orders that the parent is not a guardian of the child.
  • This section clarifies that a parent who has never lived with a child is not that child’s guardian. There are three exceptions:
  • where the parent is an additional parent under section 30 of the Act, which allows for three parents in limited assisted reproduction circumstances. This is important because these three parents may never have had the intention to live together but did all intend to be the child’s parents and guardians;
  • where the person is a parent, they may become a guardian by agreement. This is the only circumstance in which a person may become a guardian by agreement under the Act; and 
  • where a parent regularly cares for their child but does not live with the child. This may occur where a child is born in a short relationship where the parents did not live together, but both parents have been involved in the child’s life.
What government meant to do, in other words, is create a default setting for guardianship in which parents who live with their children are the children's guardians during their relationship and after separation. However, as I've said in previous papers and commentaries, the problem with s. 39(1) is that it defines guardianship according to the parents' relationship with each other, not their relationships with their child. A plain reading of s. 39 has a number of important consequences, especially if you make the assumption that you are not a "parent," as the term is used in this section, until the child is born.

1. Parents who live together at the time of their child's birth are guardians, even if they separate hours or days later. This, I hope, is what you'd expect. It's plainly the result contemplated by the Family Law Act.

2. Parents who aren't living together when their child is born but later move in together, even months or years down the road, will be guardians.  All the act requires is that the parents live together. Nothing requires them to be living together when the child is born or within a certain period of time from the child's birth.

3. People who live together but separate before the child is born are not guardians, even if they separate hours or days before the birth. I'm assuming that you are not the parent of a child until the child is born. If that's the case then the parties did not cohabit while they were "parents" and thus aren't guardians.

4. People who live together, but never live with the child, are guardians. Cohabiting parents may not live with their child if, for example, they agree to give the child up at birth or the child protection agency apprehends the child at birth. They nonetheless would qualify as guardians under s. 39(1) as they are "parents" and are living together.

5. Parents who never lived together are not guardians, including the parent who has always been the child's primary caregiver. This is the least expected result of s. 39(1). We're comfortable, I expect, with the idea that a parent who never lived with the child isn't a guardian of the child, however s. 39(1) also catches the parent who has alway lived with and cared for the child. Nothing in s. 39 gives that parent standing as a guardian, because she never lived with the other parent and actually resides with the child, contrary to the requirements of s. 39(3). This is really the unexpected problem of s. 39(1).

I'm not aware of any case that has yet noticed this problem with s. 39(1), however it's bound to come up at some point, and the hypothetical scenario my colleague and I were discussing is exactly the sort of scenario in which the problem would be most acutely realized.

Let me recap. Mum and dad are are living together but separate before the child is born. Dad understands that the child, when born, will stay with mum, but wants to remain involved in the child's life and very much wants to have some input into making decisions about the child. As a result, it's important that he be a guardian of the child, and he'd like to find a way to guarantee this status before they separate.

We understand that dad won't be the child's guardian if he moves out before the child is born, as he and mum won't have lived together while they are "parents." This point that is underscored by the introductory line of s. 39(3) which says, clearly, that a parent who never lived with a child is not the child's guardian.

So we turn to s. 39(3)(b) which lets parents make an agreement saying that dad, who never lived with the child, is a guardian. This, of course, is assuming that such an agreement can be made before the child's birth, which frankly isn't at all clear: can someone who is not yet a "parent" make an agreement about a fetus which is not yet born and is thus not yet a "child" under s. 39(3)(b)? However, assuming that an agreement about the guardianship of an unborn child can be made, the next problem is that such agreements must be made between a "parent" and all of the child's "guardians," and even after the child's birth there will be no one qualifying as "guardian" with whom the agreement could be made.

What, then is dad to do? Or mum, for that matter? Here are some options.

1. Dad and mum could do nothing and proceed as if they are both guardians. This will work as long as the parents get along with each other. Teachers, doctors, police and the other important people likely to be involved in the child's life are likely to assume that the parents are guardians, and treat them accordingly. After all, none of these people are in a position to know whether the requirements of s. 39(1) have been met or not. However, if the relationship between the parents deteriorates, there's nothing here to protect either parent's interests. If I were dad, I wouldn't be comfortable that this would protect my right to be involved in the child's life.

2. Dad and mum could sign an agreement under s. 39(3)(b) in which they agree that dad will be a guardian of the child. This would probably also do, but only as long as everyone plays nice. If things go sideways, I doubt that the agreement would be enforceable as it wasn't made with a guardian and a key condition of s. 39(3)(b) was therefore not met. If I were dad, I wouldn't be comfortable that this would protect my right to be involved in the child's life.

3. Mum could apply to be appointed as guardians of the child under s. 51(1)(a), and dad and mum could then make an agreement under s. 39(3)(b). This will do it for sure, however: guardians can't be appointed by consent, and the court will still have to consider whether it's in the best interests of the child for the appointment to be made; mum will have to fill out the cumbersome affidavit the Rules of Court require under s. 51(2), and get the criminal records check and child protection records check the affidavit requires; and, mum will have to give notice of the application to the people listed in s. 52(1). If I were dad, I'd need to be completely confident that mum would go through with the plan to make the agreement appointing me as guardian, or I'd worry that my right to be involved in the child's life will not be protected.

4. Dad and mum could both apply to be appointed as guardians of the child under s. 51(1)(a). This will do it for sure, however: guardians can't be appointed by consent; both parents will have to fill out the special affidavit, complete the required records checks and give the required notice; and, both risk the court concluding that the proposed appointments are not in the child's interests. This is a pretty good solution, but if the relationship between the parents breaks down before the application is heard, I can imagine a pretty ugly fight ensuing about who should and shouldn't be a guardian.

5. Wait until the child is born and then "regularly care" for the child, so as to qualify as a guardian under s. 39(3)(c). This sounds pretty good, but has some serious problems. First, it's not clear what "regular care" means, and if mum doesn't agree that the care has been regular, an application to court to decide the issue will be necessary. Second, it assumes that mum isn't planning on moving sufficiently far away that "regular care" will be impossible, and it assumes that the parents will get along well enough for the dad to establish a pattern of "regular care." If I were the dad, I wouldn't necessarily be confident that mum and I would get along well enough for me to establish "regular care" of the child and that mum wouldn't contest my claim to be a guardian.

I think I may have a solution, or at least a partial solution. Section 50, the section immediately preceding the sections about the appointment of people as ordinary guardians by court order, as standby guardians and as testamentary guardians, says this:
A person cannot become a child's guardian by agreement except
(a) if the person is the child's parent,
This is an odd section, as it seems to only confirm what s. 39(3) says and that, apart from s. 39, the only way people can become guardians is if they are appointed by court order or are named as standby guardians or testamentary guardians.

Interestingly, s. 50(a) doesn't say "except if the person is the child's parent, and the agreement is made pursuant to s. 39(3)(b)," which is where the solution comes in. Under this section, the only requirement to become a guardian by agreement is that you are a parent. Although the question about whether a person is the parent of a child prior to the child's birth is left dangling, the section doesn't require that some or all of the people making the agreement be guardians, which might let the mum and dad make an agreement that, upon the birth of their child, they will both be guardians of the child, thus circumventing the hullaballoo s. 51 requires.

This might be the ideal way to solve the dilemma of establishing guardianship among non-cohabiting parents, putting aside the issues of when a person becomes a "parent" and whether people can make an agreement in anticipation of eventually qualifying as parents. It's cheap, it doesn't require an application to court, it doesn't demand the time and cost involved in getting records checks and giving notice, it avoids the risk that the court will dismiss the application, and it allows people to resolve a personal issue privately.

At some point, however, a court will be asked to resolve the tension between ss. 39(3)(b) and 50(a). The court might conclude that the the sections are contradictory and thus offer a choice of two, non-exclusive processes for the appointment of guardians. Or, the court might conclude that the sections are not contradictory and that s. 39(3)(b) serves to add the additional requirement to s. 50(a) that such agreements must involve at least one person who already has standing as the guardian of the child.

I'll leave this to someone else to figure out.

18 September 2015

"Young Children Can't Be Home Alone, BC Judge Rules" ...No, Actually, He Doesn't

The Vancouver Sun published an article yesterday under the headline above. The headline was inaccurate and misleading, and so was the article, which began saying "a BC Supreme Court judge has ruled that it is not OK to leave an eight-year-old child alone at home, even for two hours."

Today the headline in the electronic version of the story reads "Judge upholds interim order that children can't be left home alone," and that first sentence has been changed. This is a little better, as the judge most certainly was not issuing a general pronouncement about eight-year-olds. However, the case the Sun was talking about, B.R. v K.K., reveals some interesting nuances of the child protection legislation in British Columbia ...and the importance of taking news stories about legal issues with a grain of salt.

Bad Headline

Better Headline

Let me explain about what happened in B.R., what the Supreme Court judge actually decided and what the decision actually means for British Columbians.

Mum and dad have two children and, at some point, separate. Sometime later, the Ministry for Children and Family Development, the folks that manage child protection in the province, comes to learn that mum leaves her eight-year-old son alone from after school until she gets home from work at 5:00pm. A social worker in the employ of the Ministry is dispatched to investigate.

The social worker asks mum to agree to a "safety plan." Mum refuses, as she is entitled to do, but is nonetheless a huge red flag to Ministry workers. Mum then refuses to allow the social worker to speak to her son, as she is entitled to do, but is also a red flag to Ministry workers. The social worker files a Form F Report with the Provincial Court, which you can find in the schedules to the Child, Family and Community Service Regulation, containing the social worker's statement that the child is, or is likely to be, at risk of harm.

The filing of a Form F triggers something called a "presentation hearing" under the Child, Family and Community Service Act, the legislation that gives the Ministry its child protection authority. Court proceedings on child protection matters are a two-stage affair. The presentation hearing is the first stage. The purpose of the hearing is to have the court look at what the Ministry is doing or proposes to do right away, and give it the thumb's up. The second stage, the protection hearing, is where the court actually hears evidence and decides whether the child is actually at risk.

To be clear, presentation hearings are not full trials and don't critically enquire into the facts of a case. They merely confirm that the Ministry has some evidence which, if true, could support the conclusion that the child in question is in need of protection, and thus that the Ministry is acting reasonably in taking the actions it has taken or proposes to take. Think of it like this. In criminal matters, the burden of proof on the government is to prove, beyond a reasonable doubt, that the accused person committed the crime. That's like proving 98% of a case. The burden of proof on the government at presentation hearings is only to show that it has a reasonable suspicion, and that's like having to prove 2% of a case. 

In any event, at the presentation hearing, with its very low burden of proof, the social work testified that, in her view, children who are eight years old don't have the mental capacity to be left alone and that in fact children who are under the age of ten cannot be safely left unsupervised. The judge also received unsworn evidence supporting this view in the form of "articles and documents" supplied by the lawyer for the government.

The Provincial Court judge hearing the case took the social worker's evidence very seriously, partly because of another decision, Re N.K., in which the court said that, at presentation hearings,
"[16] ... I am not required, nor is it appropriate, that I go behind the statements of fact contained in the Report to Court of the social worker. The court must, and the legislation requires, that great deference be given to the social workers who complete these reports. ..."
This decision kind of tied the judge's hands in the matter, and the judge made an order that the mum must ensure that the two children "will be under the care and supervision of a responsible adult at all times and not be left alone to care for themselves."

Mum appealed the Provincial Court decision, saying that the Provincial Court judge shouldn't have paid attention to the social worker's broad statement that no child under the age of ten should be left unsupervised. That's a pretty reasonable position to take, in my view. First, there is no law, in either the Criminal Code or the Child, Family and Community Service Act, that says "children under the age of ten can't be left alone." Second, it seems to me that the reasonableness of a parent's decision, because it is a parent's decision, to leave a child alone probably depends on
  1. the child's age,
  2. the child's maturity and stage of development, and
  3. the place where the child is being left alone,
rather than on a universal rule that all children under the age of ten mustn't be left alone. After all, there are some eight-year-olds I would trust with the keys to my house and my car, and some eighteen-year-olds I wouldn't allow anywhere near either.

The mum's appeal was heard by the Supreme Court, and it is the decision of the Supreme Court judge rejecting her appeal which was the basis of the Sun's story. Unfortunately, as much as I sympathize with the reasons for the appeal, the Supreme Court was right to dismiss it. 

First, appeals aren't opportunities to have a case heard all over again, particularly in cases like this, where the decision appealed from is discretionary. As the court said,
"[12] ... The decision of the Provincial Court judge should not be interfered with in the absence of some material error. The function of this court on appeal is ... to determine if [the judge] erred in law or disregarded or overlooked some relevant matter ..."
In other words, the appeal court must respect the original judge's decision unless he or she made a significant mistake about the law or didn't take into account some important fact that might have influenced the outcome.

Second, the court hearing an appeal generally isn't allowed to interfere with original judge's decisions about the facts of a case. After all, the judge hearing the appeal wasn't there to observe the witnesses and make decisions about their credibility.
"[27] I am obliged to defer to the findings of fact made by the trial judge absent a palpable and overriding error. ..."
Third, the original judge was stuck having to give a lot of weight to the social worker's opinion because of the Re N.K. case, whether you agree with that opinion or not.
"[22] ... great deference is owed to the evidence of social workers in the presentation hearing content. ..."
Fourth, the burden on the original judge at the presentation was extremely low, and did not involve making decisions about whether the child was actually at risk of harm:
"[16] ... at the presentation hearing, the [government] need not show, and the Court need not conclude, that the child is actually in need of protection in order for a supervision order to issue ..."
In these circumstances, the fate of the mum's appeal was almost foregone. 

So, what should parents take away from this decision? I'm afraid not much.

You certainly can't conclude, despite the Sun article, that all children under age ten can no longer be left alone in British Columbia, because neither the Provincial Court judge nor the Supreme Court judge made that conclusion, and because there is no law in British Columbia which says so. The Provincial Court judge was obliged to accept the social worker's evidence, and the Supreme Court judge was in turn obliged to accept the facts as found by the Provincial Court judge. At the end of the day, the social worker's opinion, although informed by her years of service and doubtless well-intentioned, is just her opinion.

What you can take away from this case, however, is the danger of rebuffing the interventions of Ministry workers. In the child protection cases I've handled in the past, the sheet the worker fills out when speaking to a parent includes a checkbox labelled "refuses to accept services." When this box is checked, the Ministry's antennae go up and it becomes even more concerned that a child is at risk. As the Supreme Court judge said,
"[41] I also note that ... [the mother] refused to permit the social worker to speak with [the eight-year-old], and in doing so kept her from undertaking the individual inquiry that [the mother] now says should have been done. ..."
Refusing to cooperate with the Ministry in a child protection case can have serious consequences, such as further investigation or, as happened in this case, the filing of a Form F Report, even though the mum was well within her rights to do so. Compliance with the suggestions of the Ministry, even if they strike you as intrusive or unnecessary, is an awfully good idea.

11 September 2015

Court of Appeal Releases Important Decisions on Spousal Support

The Court of Appeal for British Columbia has released two important decisions on spousal support this year, Morigeau v Moorey, published in April, and Zacharias v Zacharias, published a few days ago. Both deal with payors' applications to vary consent orders requiring them to pay spousal support because of the recipient's repartnering.


In Morigeau, the parties had been married for 20 years and had two children before separating in 2007. In 2011 they entered into a final order, by consent, which required the husband to pay $1,800 per month to the wife as spousal support. At the time of the order, the wife had begun to live with someone else.  In 2013, the husband applied to cancel or reduce his spousal support obligation on the grounds that:
  1. the wife was living with her partner, who was employed and had a pretty good income;
  2. the wife's income had increased; and,
  3. his income had decreased.
In Zacharias, the the parties had been married for 31 years before separating. They also had two children. Sometime around 2008, the decision isn't clear, they entered into a final consent order requiring the husband to pay $6,000 per month in spousal support. The wife remarried in 2012. In 2014, the husband applied to cancel or reduce his spousal support obligation on the grounds that:
  1. the wife had remarried;
  2. the wife had built a new career for herself and her income had increased;
  3. the combined income of the wife and her new spouse exceeded his; and,
  4. the wife's personal net worth now exceeded his.
The basic facts of each case are fairly similar and are honestly rather typical of the circumstances that usually motivate payors to try to escape, or at least lessen, an obligation to pay spousal support.

The Law on the Variation of Orders for Spousal Support

These cases gave the Court of Appeal the opportunity to restate the law on the variation of spousal support orders. The court has been a leader in Canada on the issue of spousal support and has really tried to clarify the law with important, landmark decisions like Chutter v Chutter and Tedham v Tedham. Here's  synopsis of the key points made in Morigeau and Zacharias:

1. Spousal support may be ordered because of compensatory factors, because of non-compensatory factors or because the parties have an agreement it will be paid, or because of a combination of these reasons. (Zacharias, paragraphs 26, 27, 28, 38 and 39)

The Supreme Court of Canada in Bracklow v Bracklow said that support can be paid for compensatory or non-compensatory reasons. Compensatory reasons are about compensating a spouse for the economic advantages or disadvantages that were caused by the marriage or its breakdown. The main goal of compensatory spousal support is to fairly share the economic consequences of the marriage.

Non-compensatory reasons are about the financial hardship separation can cause and are aimed at helping the financially dependent spouse become self-sufficient. An award of spousal support for non-compensatory reasons is based on the idea that spouses have a responsibility to care for each other and requires an examination of the needs and mans of the spouses, the nature of the marriage and the length of the marriage.

2. When spousal support is ordered for compensatory reasons, the amount payable can be determined by reference to the parties' standard of living during the marriage. (Zacharias, paragraphs 52, 54 and 56)

The marital standard of living can be used to measure the amount of compensation owing when a party is entitled to spousal support on compensatory grounds, as that standard is the standard fixed by the parties themselves as a result of the sacrifices made and advantages gained during their relationship.

3. Whatever the reason why spousal support is ordered, the order is a single order. (Zacharias, paragraph 39; Morigeau, paragraph 20)

Orders for spousal support under the Divorce Act take into account all of the factors set out in s. 15.2, compensatory, non-compensatory and contractual. While there may be more than one basis for an award of support, there is only one order; the order is not made up of discrete amounts for a compensatory claims and non-compensatory claims.

4. A material change in circumstances is required before an order for spousal support will be changed. (Zacharias, paragraph 29; Morigeau, paragraphs 10, 13 and 26)

Section 17(4.1) of the Divorce Act says that the court must "satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred" since the original order was made before it can change that order. In Willick v Willick, the Supreme Court of Canada held that such a change must be significant and have been unforeseen when the original order was made.

Because the considerations for original orders for spousal support are different than the considerations on applications to vary support, the case law on original orders under s. 15.2 is of little use in applications to vary under s. 17.

5. An application to vary spousal support is not a new hearing on whether someone is entitled to support or, if so, how much should be paid. The application is a hearing about the change in circumstances and the circumstances in which the original order was made. (Zacharias, paragraph 30; Morigeau, paragraph 13)

An application to change a spousal support order is not a fresh hearing of the case as if the recipient's entitlement to support were being decided for the first time; the original order must be accepted as appropriate. As the Supreme Court of Canada held in LMP v LS, the focus of the application should be on the change in circumstances and how that change may or may not effect the payor's obligation to pay support.

6. The fact that the recipient of spousal support is in a new relationship is not in itself a change of circumstances. (Zacharias, paragraph 67; Morigeau, paragraphs 13, 33, 39, 40 and 51)

In G(L) v B(G), the Supreme Court of Canada held that the remarriage or repartnering of a recipient doesn't necessarily mean that the spouse should be presumed to be financially independent, and thus shouldn't be presumed to be a material change in circumstances. If the economic basis for making the original order remains unchanged, there is no basis for variation whether the order was made on compensatory or non-compensatory grounds.

7. In an application to vary spousal support, the court will need to consider the reasons for the the original order. (Zacharias, paragraphs 33, 41, 42, 43, 44, 45 and 50)

The nature of the required material change in circumstances will depend on whether the original order was made on compensatory, non-compensatory or contractual grounds.

The analysis will be easiest where reasons for judgment, a judge's written decision, explain the basis of an order for spousal support. However, if reasons are not available, the court hearing the application to vary may need to determine the bases on which the original award was made.

8. When a change in circumstances is established, the court must then consider whether the change justifies variation of the original spousal support order. (Morigeau, paragraph 26).

In KD v ND, the Court of Appeal held that once a material change is established, the court must then consider whether the change justifies variation of the order considering the factors set out in s. 17(7) of the Divorce Act.

9. When an order for spousal support is made on compensatory grounds, the goal of compensation will be met when the recipient has achieved a standard of living equivalent to that enjoyed during the relationship. (Zacharias, paragraphs 58, 60 and 61; Morigeau, paragraph 37)

When recipient spouse has achieved a standard of living equivalent to that enjoyed during the marriage, the need to compensate will be satisfied. The spouse's standard of living when the application is heard includes the income available from all sources, including that of a new partner, but excluding the income realized from the spousal support order.

Applicability to the Family Law Act

In Rathlou v Haylock, the British Columbia Provincial Court held that the provisions of s. 161 of the Family Law Act on entitlement to spousal support are "substantially identical" to those of s. 15.2(6) of the Divorce Act; in Hutchen v Hutchen, the British Columbia Supreme Court held that the provisions of s. 162 on the amount of spousal support are "so close" to that of s. 15.2(4) of the Divorce Act that "any difference is immaterial. Accordingly, in Sinclair v Sinclair, the Supreme Court held that the result of applications for original orders for spousal support should be the same whether brought under the Divorce Act or the Family Law Act.

However, the provisions of the Family Law Act on the variation of orders for spousal support are a bit different, and a bit broader, than those of the Divorce Act. Here's what the Divorce Act says at s. 17:
(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses ...
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. ...
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; 
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; 
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and 
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
Here's what the Family Law Act says at s. 167:
(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively. 
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made; 
(b) evidence of a substantial nature that was not available during the previous hearing has become available; 
(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.
(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that
(a) the order is necessary to relieve economic hardship that
(i) arises from a change described in subsection (2) (a), and 
(ii) is related to the relationship between the spouses, and
(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.
As you can see, the provisions of the Family Law Act on the variation of orders for spousal support are quite different from those of the Divorce Act. Although Zacharias and Morigeau will apply to interpreting the Family Law Act where there are similarities between s. 17 and s. 167, recipients and payors must remember the additional terms about new evidence and non-disclosure and recipients must be mindful of the criteria for varying fixed-term orders.