27 January 2012

Little Known Family Law Facts #4

There's no such thing as a "legal separation." At least not anymore.

There were once two types of divorces, a divorce à mensâ et thoro and a divorce à vinculo matrimonii. The first kind was a divorce "from bed and board" and freed married spouses from their common law obligation to cohabit without actually severing the marriage; this was very useful for those whose religion forbade them from unhitching once hitched. The second was an absolute divorce which actually terminated the marriage.

The power to make divorces à mensâ et thoro was stripped from the church in the first commonwealth legislation on divorce, the English Divorce and Matrimonial Causes Act of 1857. Under s. 7, the court received the power to make a "judicial separation:"
"No Decree shall hereafter be made for a Divorce à Mensâ et Thoro, but in all Cases in which a Decree for a Divorce à Mensâ et Thoro might now be pronounced the Court may pronounced a Decree for Judicial Separation, which shall have the same Force and the same Consequences as a Divorce à Mensâ et Thoro now has."
This legislation became the law of the colonies of British Columbia and Vancouver Island on 19 November 1858 by the proclamation of Governor Sir James Douglas, and even survived as s. 10 of the first Family Relations Act in 1972. Under s. 10, someone who would be entitled to a divorce under the federal Divorce Act could apply for a judicial separation, as long as the spouse had lived in the province for at least ten months.

The 1972 Family Relations Act was repealed by the 1978 Family Relations Act. The new act did not carry s. 10 forward, and accordingly there has been no statutory authority for the judicial separation since that time.

26 January 2012

Kelowna Seminars on Children, Separation and Divorce with Joan Kelly

The BC Parenting Coordinators Roster Society is presenting two seminars this spring with the renowned psychologist Joan Kelly in Kelowna, at the Manteo Resort. I've heard Dr. Kelly speak many times; she is an extremely informed, engaging speaker with an astonishing breadth of experience.

On 18 April 2012, Dr. Kelly will be speaking on two topics, helping children cope with separation and divorce and alienated children. Over next two days, April 19 and 20, will provide an introduction to parenting coordination, a child-focused dispute resolution designed to assist parents with a continuing history of high-conflict disputes.

The seminars are aimed at family law lawyers and mediators, registered mental health professionals helping separating parents, custody and access assessors, and professionals preparing views of the child reports. Contact pcadmin@shaw.ca for registration and pricing information.

Victoria Lunch Time Speakers Series

The South Island Dispute Resolution Centre is putting on a series of seminars on family law topics in collaboration with Pro Bono Students Canada's Victoria Chapter and the Ministry of the Attorney General. The first seminar is on Thursday 2 February 2012 in Room 159 of the UVic law school, from 12:30 to 1:30, and features a speaker from the Attorney General's office discussing the new Family Law Act.

The noontime speaker series events are free for SIDRC members and volunteers, and UVic students; everyone else pays $20 at the door. For more information or to register, phone Jodi Williams at 250-383-4412 or drop her an email at office@disputeresolution.bc.ca.

23 January 2012

Little Known Family Law Facts #3

The thing that was "equal" about British Columbia's Equal Guardianship of Infants Act of 1948 was that married women could also have guardianship of their children, both during their marriages and after.

21 January 2012

Provincial Court Releases Decision on Pet Custody Battles

The Family Relations Act lets the court make orders for custody and guardianship of and access to children. Although the word "children" is unambiguously defined at s. 1(1) as referring to "persons," separating couples have nevertheless, from time to time, applied to court for orders about custody, decision-making authority and access schedules in respect of their pets. Although I don't think even Mitt Romney would say that pets are persons, I've even seen applications for pet support and the sharing of a pet's expenses!

Although people often form close emotional bonds to their pets, pets are, in the eyes of the law, property with exactly the same status as a coffee cup, a car or a curio. The court can make order about who has the legal right to the ownership of property, but its jurisdiction to make orders rotating a right of possession is somewhat less certain.

This was the issue before the court in Kitchen v. MacDonald, a small claims case involving a separated couple, when the claimant applied for:
"... what amounts to a declaration of ownership in a border collie dog named Laddie currently in the possession of [the respondent], and further for an order specifying possession time for each party of the dog."
It is surely a measure of the parties' affection for the dog that the application was brought to a trial, for which each of them paid to be represented by skilled counsel. Here is the court's account of some of the evidence led:
"[6] [The respondent and various other witnesses] all testified to varying aspects of how [the respondent] acquired the dog. ... It was [the respondent] who took the dog to all of its veterinary appointments, appears on the veterinary records as owner, and paid for all of the veterinary bills as well as all of their costs associated with the dog’s needs. She licenced the dog with the City of Kamloops and paid for those licences. She admits that the dog did spend time with [the claimant]. In fact, she corrected him if he referred to the dog as his, and stopped contact when he posted a photo of 'his' dog on the internet. He worked nearby and was willing from time to time to come and take the dog, some times for a few nights at a time. She does not deny that he developed a fond attachment to her dog, but denies that she ever gifted an interest in the dog to [the claimant]. At trial, [the claimant] acknowledged that he did not play a role in the selection or purchase of the dog. He also acknowledged, although he said that he purchased dog food and other items for use at his home, he did not otherwise contribute to the upkeep of the dog. He believed the dog was his because she called him Laddie’s daddy, he took care of it often, and they treated it as theirs when they were in a relationship.

"[7] There is uncontroverted evidence that [the respondent] referred to [the claimant] as the dog’s 'daddy'. There is an undated letter on file as well reporting to be from Laddie to 'my daddy', apparently following a break-up where [the respondent] writes on behalf of the dog that she is sorry she cannot make them a family. It suggests ways that he can come and see the dog while she is out of the house at work. It concludes by saying 'I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is. She wants us to both be happy.' There were also gifts and cards over the years addressed from the dog to his 'daddy'. [The respondent] also encouraged [the claimant] continuing to look after the dog during the day. ..."
Good grief. However, as the court observed, its jurisdiction in such matters is limited:
"[2] This court does not have jurisdiction to make declarations of trust. I have jurisdiction to make a finding of ownership with respect to the dog. If I find that it is jointly owned, I have jurisdiction to order that the party who keeps the dog pay the other party half the value of the dog. I cannot find that two parties own a dog and then proceed to make orders for 'access' to the dog."
The court then quoted from an Ontario case, Warnica v. Gering, involving a dog named Tuxedo:
"Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties' respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared ... In my view that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. ... Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children."
This brings us back to the basic legal issue involving the pets of separated couples: determining the legal right of ownership. As the judge eloquently put it:
"[7] ... By anthropomorphizing this dog, [the respondent] led [the claimant] to, and [the claimant] allowed himself to be possessed of an expectation that, the dog was 'the child' of both of them. This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog.

"[8] ... However, all of the factors in the mix conclusively determine that [the respondent] is the sole owner of the border collie. [The claimant's] interest is merely a sentimental one. That does not bestow any right of possession on him."

19 January 2012

Helpful Calculators from the Federal Government

The Canada Revenue Agency has a number of extremely useful calculators available online:
Payroll Deductions Calculator: calculates deductions of federal and provincial income taxes, EI premiums and CPP contribution to determine basic net income.

Child Benefits Calculator: calculates the Canada Child Tax Credit, National Child Benefit Supplement, and similar provincial benefits like the BC Family Bonus.

GST/HST Credit Calculator: calculates the tax credit for the Goods and Services Tax or Harmonized Sales Tax, and similar provincial benefits like the BC HST Credit.
Service Canada, the government agency that provides services on behalf of Human Resources and Skills Development Canada, has a useful calculator of its own:
Canadian Retirement Income Calculator: a bit complicated but will calculate Canada Pension Plan benefits and Old Age Security payments.
The Department of Justice offers the:
Child Support Online Lookup: a simple calculator to determine child support.

17 January 2012

Little Known Family Law Facts #2

Under s. 70 of the provincial Evidence Act, a judge of the Provincial Court may inquire into and make recommendations to the Supreme Court in a report regarding a family law dispute, whether or not a family law proceeding has been commenced at the time of the judge's inquiry.

Victoria Seminar on Separation and Divorce

The West Coast Family Law Centre, an interdisciplinary group of lawyers and counsellors, is hosting a seminar on family law from 9:30 to 1:00 on each of January 28th, February 25th, April 28th and May 26th. Topics will include property division, child support and spousal support, and the dispute resolution options available to separating couples.

The seminar is held at their offices at 1179 Fort Street in Victoria and costs $45 per person. To register, contact Elise Schopper-Brigel at 250-590-4840.

14 January 2012

Little Known Family Law Facts #1

The recent non-crisis about the validity of same-sex marriage involved basic legal concepts in international law and the law on domestic relations that could have been uncovered with a little bit of effort on the part of whomever chose to ignite the non-firestorm. Herewith, then, the founding of an irregular series about actually little know actual facts in family law.

The federal Assisted Human Reproduction Act regulates artificial reproduction but also makes it illegal to create, or pay someone to create, a chimera or transplant a chimera into a human or non-human life form. Creepy but true.

12 January 2012

The Validity of Same-Sex Marriages

There's a new and entirely unnecessary controversy brewing about same-sex marriages, and the media headlines I've seen suggest that Canada is somehow changing its position on same-sex marriage as a result of the divorce action of a foreign same-sex couple who married here. Apparently a Department of Justice lawyer argued that their marriage wasn't valid in the first place.

Okay, hold on people. Take a breather. It's not what the media seems to think, and the lawyer from Justice was right.

This is a problem about the "conflicts of laws" — the law dealing with how the laws of one sovereign state interact with the laws of another sovereign state — not a change in policy of a conservative government. The two basic rules about the validity of foreign marriages are these:
  1. The legal capacity of a couple to marry is governed by the law of the "matrimonial domicile," the state where the spouses wind up living after they are married. (If the law of Country A says that people named John can only marry while wearing pink underwear in months beginning with the letter "M", this requirement of marriage applies to all of the residents of Country A, including those who got married in Countries B, C and D.)
  2. The formalities of the marriage ceremony are governed by the law of the place where the marriage occurs, the "lex loci celebrationis." (If the law of Country B says that marriages may only be performed by mechanics waving squirrels, a marriage in Country B must be performed by a mechanic waving a squirrel to be valid in Country B or in Country A.)
In other words, a foreign same-sex couple will only enter into a valid marriage in Canada if their home country, the country which is their matrimonial domicile, recognizes that same-sex couples can marry. If the home country doesn't recognize the fundamental legal capacity of gays and lesbians to marry, a Canadian marriage, though legal and recognized here, won't be legal and recognized there.

To be clear, this isn't a result of the Harper government and a nefarious and regressive intention to undermine the marriages of awesome people like Dan Savage, it's about the basic rules of international law ... and those are somewhat beyond the influence of the Canadian government. (Dan, this isn't a problem with the laws of our country, it's a problem the with laws of your country.)

Have a look at my website for more information about the validity of marriage generally, including the validity of foreign marriages.

Update: 13 January 2012

The CBC reports that Canada is amending the Civil Marriage Act to ensure that the marriages of foreign couples are recognized in this country and quotes the Ministry of Justice thusly:
"I want to make it very clear that, in our government’s view, these marriages should be valid. We will change the Civil Marriage Act so that any marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada," he said in a statement.
"This will apply to all marriages performed in Canada. We have been clear that we have no desire to reopen this issue – both myself and the prime minister consider this debate to be closed."
This will not, of course, affect the international conflicts of law rules or compel countries with less egalitarian laws to recognize Canadian marriages, but it will clear up any confusion about the domestic validity of the marriages of foreign same-sex couples.

07 January 2012

Supreme Court Decision Summarizes Law on Costs

In the recent case of Schuller v. Roback, the court has been called upon the explain the thorny, vexing and generally irksome area of the law known as "costs." Costs has a special legal meaning; it's not the bill of the client's lawyer and it's not the client's out-of-pocket expenses for photocopying, court fees and so forth. Costs are a way of compensating someone for the overall expense and hassle they've been put to as a result of having to go to court, and costs are only available in the Supreme Court.

Costs are usually awarded to the person who is mostly successful in a law suit or an application, and in a way they function like an idiot tax. It the person making the application wins, the respondent shouldn't have fought the application and has to pay the applicant's costs; if the person making the application loses, the application shouldn't have been brought in the first place and the applicant has to pay the respondent's costs.

The rule on costs is Rule 16-1 and says that the court can award costs as ordinary costs or "special costs." Ordinary costs are calculated under Appendix B to the rules; special costs are awarded only in those rare cases where someone's conduct has been utterly unreasonable or frustratingly obstructive and amount to the whole of the lawyer's total bill plus disbursements. Under Appendix B, ordinary costs are calculated according to a schedule of fixed rates for particular activities, like drafting pleadings, arguing an application or writing letters, that are common to all law suits and the rates vary depending on whether the case was less difficult than usual, usual, or more difficult than usual. Ordinary costs assessed at the scale for usual difficulty might amount to 40 to 50% of a lawyer's bill.

Anyhow, the reason why I'm writing about Schuller v. Roback is because the law on costs in family law is all over the place. In the past there seemed to be two kinds of cases on costs in family law, one which said that family law is special and awards of costs can upset the delicate balance the trial judge has achieved making orders for support and division of assets, and other which said that family law is like any other kind of civil law and the party who is mostly successful should get his or her costs. Although the costs-are-costs cases seem to have won the battle, you still see an awful lot of cases where no costs order is made or the judge orders each party to bear their own costs... even when the result looks an awful lot like one party was more successful than the other.

In Schuller, after judgment had been given, the applicant sought an order that each party bear their own costs while the respondent asked for an order that he have "double costs" of the application, assessed at the rate for cases of more than usual difficulty.

First, the court discussed the basic idea about which party should have his or her costs, beginning with the leading case under the old rules.
"[15] Under the former Rule 57(9), costs normally followed the event, and went to the party who enjoyed 'substantial success.' This Court's discretion to depart from awarding costs to the successful party must be exercised judicially: Gold v. Gold."
The rule about costs under the new rules of court is Rule 16-1(7) and says that "costs of a family law case must be awarded to the successful party unless the court otherwise orders."
"[16] The new Rule does not incorporate the same reference to 'substantial success' but the Court retains the discretion to refuse an award for costs despite the success of the party making application for costs: Gain v. Gain.

"[17] In Gold the Court described the considerations that should instruct the Court in evaluating a claim for costs:
The question, then, is: when should the Court order otherwise? ... when the court should order otherwise is a matter of discretion, to be exercised judicially by the trial judge, as directed by the Rules of Court. To lay down any strict guidelines or even to attempt to give exhaustive examples is not, I think, helpful because the facts and issues in each family law case vary so greatly. Factors such as hardship, earning capacity, the purpose of the particular award, the conduct of the parties in the litigation, and the importance of not upsetting the balance achieved by the award itself are all matters which a trial judge, quite properly, may be asked to take into account. Assessing the importance of such factors within the context of a particular case, however, is a matter best left for determination by the trial judge."
Costs, then, continue to be discretionary under the new rules as they were under the old, but the starting point is set out in Rule 16-1(7): costs go to the successful party. But who is responsible for proving that costs should be awarded in any other manner?
"[18] The onus of persuading the court that it should depart from the usual rule that the successful party is entitled to costs rests on the unsuccessful litigant: Rattenbury v. Rattenbury."
And what happens when there is divided success, when each party is partially successful?
"[24] In cases where one party has achieved substantial success, the court may nonetheless award only a portion of the substantially successful party’s costs: Cohen v. Cohen, Newstone v. Newstone and Rolls v. Rolls."
Next, the court discussed the rules about when someone should have "double costs" under Rule 11-1(5). This rule says that when someone makes an offer to settle — a written proposal of terms on which an application or a law suit could be resolved — the court can deprive someone of costs even if they've won or give an offeror double costs whether they've won or lost, taking into account the factors set out a subrule (6):
In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.
Essentially, said the court, an award of double costs is intended to punish a party who rejects a reasonable offer:
"[31] The issue of awarding double costs was recently reviewed in Hartshorne v. Hartshorne. The rationale for the Rules ... emphasizes that an award of double costs is a 'punitive measure against a litigant for that party's failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted'."
The court then looked at the circumstances of the parties, the application and the offer to settle, considering the 11-1(6) factors and the decision in Hartshorne:
"[35] In my view [the respondent's] offer was delivered in a timely way. However it was a lengthy proposal and not easily evaluated. The offer included a readjustment of the division of family assets which was a claim not properly before the Court at this time. ...

"[36] In my view this offer was overbroad and while it was open for acceptance it would not have been reasonable for [the applicant] to accept the terms. I also note that some terms were simply 'nuisance' terms that [the applicant] could not accept.

"[37] Subrule (6)(b) also refers to the relationship between the offer and the final judgment of the court. Again, the offer addressed many issues on which [the respondent] did not succeed ... [the respondent] failed to achieve a result equal to or better than his offer on [a number of points] ...

"[39] ... In view of the results of the ... applications, [the applicant's] failure to accept the offer from [the respondent] was not unreasonable and she should not suffer the punishment contemplated in Hartshorne.

[40] Subrule (6)(c) invites the court to consider the relative financial circumstances of the parties. Although I have considered that [the applicant's] financial circumstances do not rise to the level of hardship for the purposes of refusing [the respondent's] claim for costs, I am mindful that her obligations and means are limited. In my view, the state of [the applicant's] financial circumstances also militates against an order for double costs.

[41] In view of [the applicant's] circumstances, the fact that the offer to settle was not one that could reasonably have been accepted and that [the respondent's] measure of success was divided leads me to conclude that this is not a case warranting an award to [the respondent] of double costs.
Summarizing these factors, in rejecting the respondent's claim for double costs as a result of his offer to settle under Rule 11-1(5), the court took into account:
  • whether the offer was delivered in a timely manner relative to the application;
  • the complexity of the offer;
  • whether the offer dealt with issues not before the court on the application;
  • the presence of terms unacceptable on their face;
  • the number of issues on which the result was as good as or better than the offer; and,
  • the applicant's financial circumstances.
Finally, the court considered the respondent's claim for costs assessed at more than usual difficulty.
[45] ... Bouck J. described the test of what is necessary to succeed in a claim for costs at the higher scale in Bradshaw Construction Ltd v. Bank of Nova Scotia:
To get an assessment out of the category of 'ordinary' difficulty under Scale 3, into the categories of 'more than ordinary difficulty'; Scale 4, or to 'matters of unusual difficulty'; Scale 5, it is necessary to show a higher degree of difficulty. Scale 5 uses the word 'unusual'. Its dictionary meaning is 'not often occurring or observed, different from what is usual; out of the common, remarkable, exceptional.' Therefore, the question is whether the collection and proof of the difficult facts were uncommon, remarkable or exceptional events? I do not believe they were.
"[46] The evidence did not rise to the level of more than ordinary difficulty. The affidavits recounted each parties' understanding of the facts and there was little conflict or difficulty in explaining the facts ... this application did not engage uncommon, remarkable or exceptional events or circumstances ... nothing in the applications engaged a difficult issue of law or fact. [The respondent's] efforts were not uncommon, remarkable or exceptional."
At the end of the day, the respondent failed to receive double costs or have his costs assessed at more than the usual level of difficulty. Because success was divided, the ordinary costs awarded to the respondent were offset by the ordinary costs awarded to the applicant. And as for the costs of the application on costs?
"[58] The parties will each bear their own costs of this application."
This case is perhaps unremarkable in its result, however it deserves to be noted for its extremely helpful digest of the case law on costs and its application of the cases determined under the old rules to the new rules.

02 January 2012

Slight Increase in Funding for Legal Aid

The Attorney General has announced a slight increasing in funding for the Legal Services Society, the organization that provides legal aid in British Columbia. According to the press release, additional funds of $2.1 million, which I calculate to amount to 3% of the society's present budget, are meant to
"assist families with emergency family matters related to custody or access, as well as to provide for representation for parents with children in the custody of the Ministry of Children and Family Development."
Although I'm happy for any increasing in funding at all, the categories of service the funds are earmarked for are existing categories. In fact, they're all that's left of legal aid services for family law matters since the eviscerating budget cuts of 2001.

The Times Colonist has published an article on the Attorney General's announcement that talks about the underfunding of legal aid in a little more depth.

Update: 4 January 2012

The Trial Lawyers Association of BC is protesting the continued underfunding of legal by its members withdrawing from duty counsel services throughout the province for the week. Says the TLABC on its website:
"The Battle for Legal Aid in BC has entered a crucial new phase, as the first wave of Duty Counsel service withdrawals is now in effect. The service withdrawals will be conducted as a four-part escalating series, with counsel standing down for the first week of January, two weeks in February, three weeks in March and all of April. Further forms of so-called job action are already being evaluated."
Read the CBC's report on the TLABC's action, or visit the CBA British Columbia's We Need Legal Aid website.