15 May 2015

Why the Family Law Act Should Be a Complete Code

A fog of uncertainty and conflicting cases continues to trouble the new Family Law Act. The confusion is understandable, given that barely two years have elapsed since the act came fully into force and that the Court of Appeal has yet to pronounce upon the key areas of controversy, but nonetheless highlights critical access to justice issues that went unobserved and unnoticed under the previous legislative regime which thirty years' of case law had fully explored.

One of these key areas concerns the status of gifts received by spouses and whether such gifts are divisible family property or are excluded from sharing. Under s. 85(1)(b.1) of the act, "gifts to a spouse from a third party" are excluded from the pool of family property that is divided between spouses. However, controversy has arisen as to whether this seemly simple statement captures all gifts to a spouse such that the common law presumption of advancement no longer applies.

(The "common law" is the English legal system in which judges build the law as they decide each case, and is the legal system everywhere in Canada except Quebec. The "presumption of advancement" is a principle of the common law that when a spouse or a parent transfer property to a spouse or a child, the transfer is a gift. The presumption can usually be avoided if the spouse or parent can prove that the transfer was a loan or otherwise show that there was no intention to make a gift. The presumption of advancement is written into the Family Law Act.)

In Remmem v Remmem, Mr. Justice Butler decided that the presumption of advancement no longer applies in British Columbia because the Family Law Act is "intended to be a complete code so that there is no need to examine the intention of the parties." Moreover, if the presumption did apply, the presumption would: require that unmarried spouses be treated differently than married spouses, as the presumption only operates between married spouses; and, undermine the "apparent simplicity and certainty of the property division scheme."

On the other hand, Mr. Justice Masuhara, writing in Wells v Campbell, observed that the act fails to explicitly extinguish the presumption of advancement or otherwise alter the law on perfected inter vivos gifts, and applied the presumption. A similar result was found by Mr. Justice Walker in V.J.F. v S.K.W., who further noted the unfortunate provisions of s. 104(2) of the act,
"The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law,"
and likewise applied the presumption. I've discussed all three of these cases more fully in my post "Dividing Property under the FLA."

The different conclusions reached in these cases reflects more than a disagreement between judges; they reflect two of the fundamental barriers to accessible justice created by our legislation on family law.

Firstly, nothing in the Family Law Act tells the reader that she must look anywhere other than the act to understand her right to share in the property accumulating during her relationship. Nothing in the act hints that the presumption of advancement exists, never mind the other common law principles like the presumptions of gift and resulting trust, the doctrine of unjust enrichment or the constructive trust. How would someone leaving a relationship ever come to the conclusion that she needed to look anywhere other than the legislation on the division of family property to figure out her and her spouse’s rights? What would make her even suspect that there might be other rules to consider than those set out in the act?

Secondly, by injecting the principles of the common law into the division of family property, the certainty created by the Family Law Act – such as it is – is substantially undermined. Vagueness in legislation has a number of negative effects in family law matters: it makes the results of disputes indeterminate and potentially unknowable; it broadens the range of likely outcomes; in broadening the range of outcomes, it does nothing to limit spouses’ hopes and expectations about the result of their cases; and, in failing to limit spouses’ expectations, it promotes conflict.

I have written elsewhere about the need for legislation on gamily law to be clearly written and comprehensible to the average reader. I have also written about how legislation on family law that fails to limit the range of likely outcomes encourages a single-serving approach to justice that, in serving the individual well, creates uncertainty and a muddled body of case law for everyone else. I’ve also written about the how the chances of settlement improve when individuals’ expectations as to outcome lie within the range of likely results and how the chances of settlement correspondingly diminish when litigants have unrealistically high expectations, and will say no more on the matter.

In my view, Mr. Justice Butler’s approach to the Family Law Act, although undermined by s. 104(2), is much to be preferred in the context of family law disputes. If I had my druthers, the legislation on family law would indeed be a complete code, to both enhance access to family justice and dampen conflict by constraining parties’ expectations.

It seems to me that there are at least three principles that should be applied to the design and drafting of legislation on family law subjects if access to justice is a goal worth pursuing:

1. The legislation on family law should be written as clearly and concisely as possible. The average person, possessed of average intellect and average literacy, ought not be required to retain counsel to read and understand the legislation applicable to her circumstances. Family justice is inaccessible when the governing legislation is incomprehensible.

2. The legislation on family law should be exhaustive of the subject matter it purports to address. It is not unreasonable for an individual to expect that reading the legislation on the division of family property would provide all of the information relevant to the division of family property. Family justice is inaccessible when critical sources of law exist parallel to and unacknowledged by the governing legislation.

3. The legislation on family law should provide certainty as to the results of proceedings commenced under that legislation. People reading the legislation should be able to understand how the legislation applies to their circumstances and predict the likely outcome of proceedings under that legislation. Family justice is inaccessible when the result of the application of the governing legislation is indeterminate.

Much of the present efforts toward justice reform is focused on improving public legal education, redesigning justice processes and integrating social services within justice processes. These efforts necessarily contemplate revision of the rules of court, but there are more fundamental rules that must also be considered. Reform of the legislation on domestic relations must not be overlooked as we work to improve the accessibility of family justice.

It seems to me that the Family Law Act, and access to family justice for British Columbians, would be greatly improved if s. 104(2) was amended to limit the application of other laws to the relevant legislation of British Columbia, like the Land Title Act or the Partition of Property Act, and to expressly extinguish the application of common law principles to the rules about family property and excluded property under the act.

A version of this post was originally published in the legal news magazine Slaw on 15 May 2015.

02 May 2015

Dividing Property Under the FLA: Where We're At

The Family Law Act has been law in British Columbia for just over two years now, and we're starting to accumulate a good number of court decisions interpreting the parts of the act dealing with the division of property and debt. Since I've just spoken about these cases for the Trial Lawyers' Association of British Columbia and the Continuing Legal Education Society, I thought I'd provide a short summary of where we've gotten to.

The first case dealing with property under the new act was Asselin v Roy, a 2013 decision of Mr. Justice Harvey. This was a helpful case, as the judge had to address property that was brought into the parties' relationship, property bought during the relationship with inheritances, property bought during the relationship using the property brought into the relationship, and property bought during the relationship using property brought into the relationship plus new money earned during the relationship. This is important because:
  1. property brought into the relationship is supposed to be excluded from the property the spouses  share after separation;
  2. inheritances received during the relationship are supposed to be excluded from shared property; 
  3. spouses are presumed to share in property bought during the relationship; and,
  4. spouses are also supposed to share in the increase in value of excluded property during their relationship.
The judge decided that the equity in property brought into the relationship (the sale value minus the amount of any mortgages that had to be paid off from the sale proceeds) is what is excluded from sharing, and that all increases in value above the equity when the relationship started is to be shared. If that property is sold and the proceeds used to buy a new property, the person who bought the first property into the relationship is entitled to get the equity in the first property out of the new property. Inheritances are excluded from sharing between spouses, and a spouse who puts money from an inheritance into buying a property is entitled to get that money out of the property. However, the judge also decided that if a property excluded from sharing goes down in value during the relationship, the spouse who owns the property isn't entitled to get a credit for the decrease from shared property.

Perhaps most importantly, the judge also decided that the new act is intended to:
"[105] ... create more certainty for litigants in the division of their assets. The broad discretion formerly available under the [old legislation] has been replaced with a more formulaic approach to both the identification and division of family property ..."
Oh, would that the new act was indeed more certain.

The next important case was Remmem v Remmem, a 2014 decision of Mr. Justice Butler that I've written about elsewhere. Like in Asselin, the judge had to deal with property that was brought into the relationship and went down in value, property that brought into the relationship and sold and used to buy new properties, and property bought during the relationship with money earned during the relationship, as well as one spouse's excluded property that is put into the names of both spouses.

Justice Butler reached the same conclusion about property going down in value as Justice Harvey: if property excluded from sharing goes down in value, the spouse who owns the excluded property has to eat the loss and cannot make up the lost value from shared property. Good. This approach is consistent with what the Family Law Act appears to want the court to do, and it's good to have two decisions making the same decision on the issue.

On the excluded property that was transferred into both spouses' names, the judge decided that the transfer didn't affect the amount of the exclusion that the spouse who formerly owned the property would be entitled to. This was a really important point because of a principle of the old common law called the "presumption of advancement" that normally would have characterized the transfer as a gift between spouses essentially erasing the exclusion that the former owner would have been entitled to.

The common law, the rules made by judges when there is no legislation that requires a specific result, is full of odd quirks that aren't part of legislated laws and are sometimes counterintuitive, like the presumption of advancement, the presumption of gift and the presumption of resulting trust. The main problem with these presumptions is that they're not only not part of the legislated law, the legislated law doesn't even refer to them! As a result, both the rules of the common law and the rules of the legislation might apply to a problem, but someone who doesn't know about the common law would have no idea just reading the legislation that there is a whole other collection of uncodified laws that also needs to be considered. This, I humbly suggest, is a real problem from an access to justice perspective.

In the case of the presumption of advancement, Justice Butler observed that the presumption only applies to married spouses, and applying the presumption would:
  1. create a differential treatment of married and unmarried spouses contrary to what the act intends, and the presumption is at odds with the overall scheme of the act;
  2. defeat the owning spouse of the excluded equity he or she would normally be entitled to; and,
  3. rob the act of the simplicity and certainty of it's plan for the division of property.
Accordingly, the judge decided that the plan for the division of property set out in the act was a "complete code" such that the presumption of advancement, and presumably the other presumptions of the common law, no longer applied to the division of property between spouses.

This conclusion is really appealing to me, and I think that Justice Butler's reasoning is fully in line with the overall design of the Family Law Act. It really would be helpful for everyone, lawyers and spouses alike, if the act were a complete code. Avoiding those old common law principles would lend a great deal of certainty to the division of property between spouses; fewer spouses would have unreasonable expectations as to what they are and aren't entitled to; lawyers would be able to more accurately predict the outcome for their clients and more cases would settle out of court as a result; and, people without lawyers wouldn't have to go spelunking until the bowels of the common law just in case theres some dusty old rule there that applies to them that the legislation doesn't even mention.

However, this was not the conclusion reached by the Chief Justice in Cabezas v Maxim. In this case, the spouses lived in a property that was purchased with help from one spouse's parents, who also contributed to the mortgage from time to time. According to the case law, when the parents of a married person give the person money to buy the family home, without an agreement in place, the court is required to presume that the money was a gift to the person receiving it which, through the presumption of advancement, also becomes a gift to the person's spouse. The Family Law Act, of course, says that gifts received by a spouse during the relationship are the property of the spouse and are excluded from sharing with the other spouse.

The Chief nonetheless applied the presumption of advancement, holding that:
"[68] ... This presumption of advancement is limited in scope, and does not apply to all gifts or inheritances received by a spouse from his or her parents. Generally, such gifts are excluded property under s. 85(1)(b) of the Act ... However, where a parent chooses to provide funds to a child for the purchase or maintenance of the family residence ... those funds are presumed to be a gift to both the child and his or her spouse. Absent evidence rebutting this presumption, the funds ... are family property under s. 84 of the Act."
The presumption of gift was applied by Mr Justice Masuhara in Wells v Campbell, in the context of a property brought into the relationship by one spouse and later transferred into the names of both spouses. The judge said that:
"[32] I find that [the claimant] at the time he transferred the [property] into joint tenancy he did so as a gift to [the respondent]. ... The transfer of an interest in the [property] was a perfected inter vivos gift and the gift cannot be revoked. I do not read the Act as altering the law of inter vivos gifts. Accordingly I cannot see how [the respondent] can be denied the entirety of her interest in the property ..."
Commenting on Remmem, Justice Masuhara said that:
"[38] ... I am not persuaded that [the problems identified by Justice Butler] lead to the conclusion that the Act displaces or extinguishes the presumption of advancement, or the effect of an inter vivos gift resulting in a joint tenancy. There is no explicit extinguishment in the Act [of these presumptions], as has been done in other jurisdictions ..."
Mr. Justice Walker reached the same decision as the Chief and Justice Masuhara more recently, in the 2015 case of V.J.F. v S.K.W. Justice Walker addressed the issues raised by Justice Butler, applied the reasoning of Justice Masuhara, and further observed that the Family Law Act seems to preserve the rules of the old common law:
"[63] ... in s. 104(2), the FLA provides that common law and equitable rights are retained. That section provides:
104(2) The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law.
"[64] In looking through the reasons for judgment, I cannot find where s. 104(2) was raised before Justice Butler in Remmem. ... 
"[67] ... I am of the option that it cannot be said that the FLA does not contain any provision that permits for the presumption of advancement."
With much regret, I do believe that Justice Walker is correct, much though I wish this were not the case. With the greatest respect for the drafters of the Family Law Act, in my view it would be better for British Columbian families if s. 104(2) were repealed; leaving the act open to the vagaries and uncertainty of the common law does a disservice to all.

The other issue that's been working its way through the courts is what "significant unfairness" means. This is important as the act says that:
  1. shared family property should be divided equally between spouses unless an equal division would be "significantly unfair;" and,
  2. a spouse's excluded property should not be divided between spouses unless it would be "significantly unfair" not to do so.
There's only one other law in BC that uses this phrase, and I'm afraid it's the Strata Property Act, which uses the term in the context of the actions taken by a strata property council against a strata property owner, which I don't think is really analogous to the relationship between spouses under the Family Law Act.

In L.G. v R.G., a 2013 case of Mr. Justice Brown, the court referred to a thesaurus for the idea that "significant" means something that is "important, of consequence, of moment, weighty, material, impressive, serious, vital, critical." Looking at some of the Strata Property Act cases, the court noted that "significant" has been held to mean something that is "burdensome, harsh, wrongful, lacking in probity or fair dealing," and that:
"[70] ... the use of the word 'significant' before 'unfairness' indicates to the Court that it should not interfere with the actions of a strata council unless the actions result in something more than mere prejudice or trifling unfairness."
With respect, I don't think that the threshold intended by the Family Law Act is something as modest as unfairness that is "more than mere prejudice or trifling unfairness." It seems to me that the act means to raise a much higher burden to unequal divisions of family property, or the division of excluded property, than this.

In Remmem, Justice Butler took an approach closer to the dictionary definitions and held that "significant unfairness" means something that is "weighty, meaningful, or compelling," and that:
"[44] ... the legislature has raised the bar for a finding of unfairness to justify and unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2) ..."
The court also helpfully provided a three-part test to decide when the equal division of shared family property might be significantly unfair:
  1. determine the family property to be divided, excluding any property qualifying as excluded property;
  2. equally divide the family property; and,
  3. determine whether the equal division is significantly unfair, taking into account the overall result of the equal division including the excluded property each spouse is keeping.
This approach was followed by Madam Justice Fitzpatrick, in the 2015 case of Walburger v Lindsay.

To summarize the general trend of the case law to date, then, when property is brought into a relationship, the equity in the property on the date the relationship begins is the excluded property of the spouse who owns it. However, when that property decreases in value during the relationship, the decreases value is the excluded property and the owning spouse can't look to the shared family property to make up the loss. The family property to be shared by the spouses is the property brought with new money during the relationship plus any increase in the value of excluded property occurring during the relationship. Family property also includes the value of new property bought with the proceeds of sale of excluded property, less the amount of the excluded property that was contributed to the purchase of the new property.

In general, gifts from third parties and inheritances that are received by a spouse during the relationship are excluded property, except when one of the common law presumptions applies to make the gift or inheritance the property of both spouses. Likewise, a spouse who transfers excluded property into the names of both spouses may also be considered to have lost his or her excluded interest in the property.

And this, more or less, is where we're at.

02 April 2015

Two Great Conferences on Children and the Law: Save the Dates!

Best Practices in Child Legal Representation Conference
6, 7 and 8 May 2015
Calgary, Alberta

The Alberta Office of the Child and Youth Advocate is hosting its third biennial Best Practices in Child Legal Representation Conference at the Sheraton Cavalier in Calgary. This conference will demonstrate what good child legal representation looks like and how those who represent children and youth can do so in the best possible way. The goal of the conference is to further develop and improve child legal representation practices.

Sessions will draw on experts in the field — including me! — to lead discussions on current issues, to hear about new ideas of practice, and to learn from other jurisdictions. The conference will be an opportunity to reflect and develop new plans for practice and ultimately, to provide better outcomes for children and youth.

I went to the OCYA's 2013 conference and was thoroughly impressed by the quality of the programming and organization.

The early bird conference fee is $399, after today the fee will be $425. For more details and to register, go to the conference webpage.

  Access to Justice for Children Conference
14 and 15 May 2015
Vancouver, British Columbia

The Continuing Legal Education Society of British Columbia is hosting the Access to Justice for Children Conference at the Pan Pacific in Vancouver. The conference will be relevant to anyone whose work involves children, including mental health professionals and lawyers practicing human rights law, family law and child protection law. An impressive faculty lineup will be herded by the Honourable Donna Martinson, a retired judge of the BC Supreme Court, and Suzanne Williams, a lawyer with the International Institute for Child Rights and Development.

Participants will learn about:
  • the nature of and scope of domestic and international legal rights of children, both generally and with respect to children’s broad participatory rights;
  • the lived reality of and complexity of children’s lives (including information about the essentials of child development), and how children’s lived realities are linked to legal analysis;
  • the nature of the access to justice barriers children face in all areas of law, including a consideration of the unique circumstances of Indigenous children;
  • practical ways in which lawyers have used and can use the legal system to overcome barriers children face, in all areas of legal practice, and when engaged in all legal processes, including court proceedings, out of court dispute resolution processes, and formal and informal administrative proceedings;
  • the ways in which principles of indigenous justice apply and can help inform non-indigenous decision making processes, including out of court dispute resolution  processes;
  • services, including legal services, that are available to lawyers to assist children; and,
  • future ways in which lawyers, both individually and working together, in BC and across Canada, can help to enhance equal access to justice for children.

I've been involved with CLEBC for many years. The quality of their courses and seminars has always been outstanding.

The early bird conference fee is $1,005, after 16 April 2015 the fee will be $1,110. A variety of bursary and discounts are available, as well as a lower rate for those attending by webinar. For more details and to register, go to the conference webpage.

29 March 2015

Family Law Agreements and Independent Legal Advice

A colleague recently asked a question about the custom of sending people for legal advice before they sign agreements and I realized that, in light of certain provisions of the new Family Law Act, a refresher on the topic might be helpful.

Why it's important to get legal advice before signing an agreement

When people sign agreements about family law matters, lawyers always want those people to get legal advice about the meaning and effect of their agreements. (This is often called "independent legal advice," because each party is getting their own legal advice from their own lawyer, independent of the other party.) In fairness, this oughtn't be just a lawyer thing, it's a damn good idea in general.

Family law agreements, you see, are unusually important, sometimes more so than other kinds of agreement. Family law agreements:
  • are contracts, and, like any other contract, you're stuck with it if you sign it;
  • usually don't have an end-date and are meant to last forever;
  • contain terms that can have life-long impacts, like about the payment of spousal support and the division of property and pensions, 
  • deal with the most important things in people's lives, like how their children are cared for; and,
  • usually represent a compromise of people's legal rights, and sometimes the terms of an agreement are different than what the result might have been at trial.
As well, the agreements family law lawyers draft tend to be long and on the complicated side. Although the meat-and-potatoes stuff about who keeps the car, how the kids will be looked after and how the family home will be sold is all in there, lawyers add a lot of other stuff that is intended to strengthen an agreement against all the different ways an agreement can be attacked in court. This isn't about lawyers being neurotic arseholes, it's about making sure that the agreement stands the test of time and that everyones' interests are protected. Among other things, you'll see clauses that say things like this:
  • the agreement is a final settlement of all legal issues resulting from the relationship, and each person releases the other from all claims they might have as a result of the relationship;
  • each person has received independent legal advice or had the opportunity to get it;
  • each person has read the entire agreement carefully and fully understands what the agreement says and how it limits his or her legal rights;
  • each person has completely disclosed all information relevant to the negotiation of the agreement, and each person is satisfied with the other person's disclosure;
  • each person is signing the agreement voluntarily and hasn't been pressured into signing it by the other person;
  • if a part of the agreement is found to be void, the rest of the agreement remains binding on the parties;
  • a person's failure to insist that other do something as the agreement requires does not mean that he or she has waived that requirement;
  • the written agreement is the entire agreement, and there aren't any oral agreements that go along with it; and,
  • the agreement can be changed in the future, but only in writing.
There are many other clauses that you'll see in agreements prepared by lawyers, but these are the biggies.

As a result, it is really, really important important that you see a lawyer to get advice about any agreement before you sign it. You need to understand not just the nuts and bolts of the agreement, like who has to do what and when it has to be done by, you have to understand all of the legal gobbledegook too.

Do you have to get legal advice?

No, in all honesty, you don't... although getting legal advice is a really good idea.

In general, each person has an interest in making sure that the other person gets legal advice about the agreement. It sounds strange, I know, that you'd want you ex to see a lawyer and get advice about an agreement, but you do. You want to stop your ex from ever saying something like "gosh, I had no idea that the agreement said that, I never would've signed it if I knew that!" Now, agreements are presumed to be binding on you, whether you've read it or understood it or not, but there are circumstances when not having had legal advice makes it a bit easier to weasel out of an agreement.

You especially want the other person to get legal advice if the agreement is unfair to him or her!

What do you get when you get legal advice?

If you've read through to this point, you know that the lawyer you see will tell you about the meaning and legal effect of the agreement. In addition to this, the lawyer should get a lot of information from you about yourself, your family and the circumstances of your relationship and then tell you:
  • about the laws and legal principles that apply to your situation;
  • about the range of likely results if you and your ex took your dispute to court instead of trying to settle it;
  • about the risks and cost involved in taking your dispute to court;
  • whether the terms of the agreement are within the range of likely results and whether, taking all of terms of the agreement and all of your circumstances into account, the agreement is fair;
  • whether there are any problems with how the agreement is drafted; 
  • whether any changes are necessary to the agreement to make it fairer to you;
  • whether any changes are necessary to the agreement to better defend it against attempts to set it aside in the future; and
  • whether you should sign the agreement or not.
It's important to understand that the lawyer can't prevent you or your ex from signing the agreement. My job was just to explain the law and offer an opinion about the agreement, and although there were a few occasions when an agreement was so horribly unfair that I refused to witness a client's signature, I always respected my clients' right to settle a dispute.

What's the Family Law Act got to do with legal advice?

Firstly, the Family Law Act says that agreements are just as good as orders in settling a family law problem. As well, s. 6 says that agreements are binding on the people who've signed them, whether the agreement is filed in court or not, or whether the parties had advice from a lawyer or not.

Secondly and more importantly, the act says that the court can't make an order about spousal support or the division of property and debt if the parties have an agreement on those issues until the agreement has been set aside. This is really important; the old Family Relations Act didn't give this much heft to family law agreements! The parts of the act that talk about setting agreements on these issues aside, s. 93 for property and debt and s. 164 for spousal support, both say this:
On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; 
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; 
(c) a spouse did not understand the nature or consequences of the agreement; 
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
It's easy enough to read between the lines here and see why legal advice is so important. Legal advice will:
  • help you know whether enough disclosure was made to reveal all of the property and debts;
  • tell you whether all of the important information was probably disclosed;
  • tell you whether either person is being taken advantage of;
  • stop each person from relying on their ignorance of the law or the agreement if they try to have the agreement set aside in the future;
  • stop each person from claiming that they did not understand the nature or consequences of the agreement if they try to have it set aside in the future; and,
  • identify any problems with the agreement under the law of contracts that might cause all or part of it to be set aside in the future.
If you're signing a family law agreement that talks about spousal support, property or debt and you want that agreement to last, getting independent legal advice is a must.

How do you prove you've each had legal advice?

To be binding, each person must sign the agreement; there's normally a space for each party to sign at the end of the agreement, along with a space to write in the place where the agreement was signed and the date it was signed. Sections 93 and 164 also ask that each person's signature be witnessed by someone else, and that's normally also how lawyers prefer agreements to be executed.

What I used to do was send my agreements to the other person complete with a "Lawyer's Certificate of Independent Legal Advice" and a "Confirmation of Independent Legal Advice" for each party. The idea was that the client would sign the agreement and the confirmation, and the lawyer would witness the client's execution of the agreement and sign the certificate. The complete agreement would consist of the text of the agreement itself, two certificate and two confirmations, all of which would be stapled together for each copy of the agreement. This way, I had positive proof that each party had received independent advice.

Now, to be fair, these things aren't necessary. The certificate and confirmation are just forms I made up, but I they helped make sure that the agreement would stand the test of time ...and they also discouraged people from trying to set them aside. This is what my certificate said:
"I certify that I have been retained by ___________ to advise and have advised her with regard to the signing of the Agreement. 
"On the ________ day of ___________ , 2015 I fully read over and explained to ___________ the said Agreement, and informed her of the contents of the said Agreement as it effects her rights under the Family Law Act, the Divorce Act and the Wills, Estates and Succession Act, and she expressed herself to me as understanding the Agreement on and in light of her present and future circumstances as well as the present and future circumstances of ___________ .  ___________ indicated to me, and it appeared to me, that she entered into the Agreement willingly and not under any duress or stress exerted by ___________  and without any pressure or undue influence or deception on the part of ___________ or anyone on his behalf. 
"I believe that upon executing the Agreement, ___________ was fully advised and informed with regard to all the foregoing matters mentioned and may fairly be said to have acted independently therein."
You can see how this hits the highlights of ss. 93 and 164. The agreement was fully explained to the client, the client knew how the agreement would impact her now and in the future, the client said she understood the agreement, it seemed to me that she understood the agreement, and the client wasn't pressured into signing the agreement.

My confirmation was even simpler:
"I, ___________ , the above-named, state that I have read over the above Certificate of Independent Legal Advice and that the statements therein said to be made by me are true."
Feel free to use these if you'd like, just make sure that you translate them into English first.

Do you have to have a certificate of legal advice?

Nope. Having one just helps to prove that the person received legal advice, but it's not mandatory and there are other ways of proving that the person had legal advice.

26 March 2015

UK Expert Panel Releases Report on Child-Inclusive Mediation

The Voice of the Child Dispute Resolution Advisory Group released its final report (PDF) today. The advisory group was established by the UK Ministry of Justice to promote child-inclusive practice in out of court dispute resolution processes. The report proposes a new framework, process flow chart and agreement to mediate for child inclusive mediation and makes 32 recommendations, the most significant of which, in my view, are these:
  1. a presumption should be adopted that children and youth 10 and older should have the opportunity to have their voices heard if they wish; 
  2. pilot projects should be established to evaluate different models of child inclusive mediation; 
  3. the proposed framework and process flow chart should be adopted;
  4. mediation should remain confidential, as should the communications between the mediator and child;
  5. mediators should override children's wishes about disclosure and non-disclosure onluy in exceptional circumstances;
  6. competent children should be able to have their voices heard, regardless of parental consent; and,
  7. children should be provided with quality, age-appropriate information about separation.
The recommendations contained in this report are pragmatic and thoughtful, and propose a welcome extension of children's rights under the UN Convention on the Rights of the Child to have their voices heard in court proceedings affecting their interests.

Read the terms of reference for the advisory group and government's response (PDF) to the advisory group's final report.

19 March 2015

Important Judgment from the Ontario Court of Justice: Unmarried couples may be entitled to spousal immunity

In the case of R. v Lomond, a criminal case involving a bunch of driving offences, Crown counsel — the lawyer for the government who prosecutes criminal offences — sought to call the accused person's unmarried spouse as a witness, raising the issue of spousal immunity and whether it applied to people in unmarried relationships.

Spousal immunity is a principle of the common law which says that married spouses can't be forced to testify against each other in criminal proceedings, and is intended to protect and promote trusting spousal relationships. This principle has been overruled to some extent by s. 4 of the Canada Evidence Act, the legislation that applies in criminal proceedings. Under this section the Crown can require spouses to testify for the purposes of certain, specified offences, but otherwise:
"No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage."
You can see the problem. The immunity provided by the Canada Evidence Act and the common law rule applies only to "husbands" and "wives," and unmarried couples, regardless of how long they've lived together aren't "husbands" or "wives." As a result, the court had to decide firstly whether the nature of the couple's relationship was "common law" and, if so, whether the common law rule which prohibits the Crown from requiring accused person's spouses from giving evidence should apply to people in unmarried, "common law" relationships.

(I will pause here to again say that the term "common law marriage" in the context of these relationships is incorrect and misleading. There was such a thing once upon a time — a couple could be legally married, without marriage licences from the state or the blessing of a priest, by meeting in public before witnesses and promising to live together and be faithful to one another — but various Marriage Acts have long since repealed this form of marriage. Although the federal government persists in using the term "common-law partner" in its legislation, there is no such thing under the law. In fact, most of the time what matters is whether a couple fits a particular law's definition of "spouse," which makes the status of a relationship a statutory issue not a common law issue. The Family Law Act, for example, defines "spouse" as including married couples as well as couples who have lived together in a marriage-like relationship for at least two years.)

Thankfully, there are a boatload of cases that cover the issue of whether a particular romantic relationship is spousal or not in the absence of a legal marriage. The court drew from an old Supreme Court of Canada case about unmarried spouse's entitlement to statutory benefits to describe the factors that tend to show that a particular relationship is a spousal ("common law") relationship:
  • whether or not the persons have a conjugal relationship;
  • the degree of exclusivity of the relationship;
  • the conduct and habits of the persons in respect of household activities and living arrangements;
  • the degree to which the persons hold themselves out to others as an economic and domestic unity;
  • the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;
  • the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;
  • the degree of financial dependence or interdependence and any arrangements for financial support between the persons;
  • the care and support of children; and,
  • the ownership, use and acquisition of property.
Applying these factors, and a few others I haven't mentioned, the judge concluded that the accused and his partner were in fact in a spousal ("common law") relationship. On the question of whether this should result in the extension of spousal immunity, the court held (cites omitted, emphasis in original):
"[25] ... I find that the common-law rule is inconsistent with modern Charter values and an appropriate remedy would be to extend the non-compellability aspect of this to common-law couples. In doing so, I am persuaded by the analysis of the Alberta Court of Appeal in [R. v Legge] on the issue of interpreting the common-law in a manner consistent with the Charter. Paperny J.A. on behalf of the unanimous court wrote:
[35] Canadian courts have long applied and developed common law principles in a manner consistent with the values enshrined in the Charter ...  
[36] In [R. v Salituro], Iacobucci J. commented on the development of the common-law to comply with Charter values in the context of an exception to the spousal immunity rule (at para 37):
These cases reflect the flexible approach that this court has taken to the development of the common law. Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.
[37] At paras 48-49 he went on to say:
The Charter has played and will continue to pay a central role in defining the legal and social fabric of this country. As the Charter is the supreme law of Canada, any legislation or government action or law inconsistent with it is, to the extent of the inconsistency, of no force or effect. But the Charter will also be influential even in the absence of legislation or government action... Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed...
"[26] I find the analysis of Paperny J.A. apt in the particular circumstances of this case. [The partner] and the Defendant are in a committed, long term relationship akin to marriage. The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage. I find that it is both just and appropriate to extend the immunity rule to make common-law spouses in committed relationships akin to marriage non-compellable witnesses for the Crown. Put differently, [the partner] cannot be compelled to testify for the prosecution in this case, but I make no finding with respect to her compellability at the request of the Defence. ...
"[32] Having considered the narrow issue before me and the corresponding authorities on point ...  I find that an appropriate remedy would be a common-law remedy which addresses the current nature of the common-law rule as it pertains to common-law couples. These reasons do not purport to read in language to the [Canada Evidence Act] or expand the definition of husband and wife to include common-law spouses as envisioned by s. 4 of the [Canada Evidence Act]. ..."
And there you go. The courts of Canada can and should use Charter values to adapt the principles of the common law where the rationale underlying the common law is inconsistent with the Charter, and in this case the result was the extension of the common law principle of spousal immunity to unmarried ("common law") spouses.

12 March 2015

Important Evaluation of ClickLaw's Wikibooks: Courthouse Libraries BC needs your help!

Courthouse Libraries BC has just started an evaluation of its ever-expanding collection of wikibooks, maintained under CLBC's Clicklaw banner, and they need your input. Help CLBC out by visiting its Clicklaw Wikibooks page and checking out a title. A box will pop up asking to you to take a short survey, and the survey will load into that box when you're done with the wikibook.

Wikibooks are websites built on the open-source MediaWiki platform that powers Wikipedia. The platform is great for websites that offer large amounts of information, and is built to allow authors to quickly add and edit pages and allow users to search content quickly.

Clicklaw Wikibooks presently offers wikibooks on subjects including tenants' rights, consumers' rights, human trafficking, taxes, wills, being an executor, family violence and child protection. It also hosts my own wikibook, JP Boyd on Family Law, which is available in print at public and courthouse libraries throughout the province as well.

Please browse through a wikibook and give CLBC your feedback. This will help CLBC improve the free legal education material it provides and benefit all British Columbians.
  • Visit the Clicklaw Blog for more information about the evaluation.
Participants who complete the survey can be entered into a monthly draw to win a $100 prepaid Visa gift card.

The survey for the evaluation of most wikibooks will run until mid-June. The survey for the evaluation of JP Boyd on Family Law will run until mid-August.