04 June 2013

Sharp-Eyed Lawyer Spots Error in Supreme Court Forms

David Ibbetson of Browne & Associates in Victoria has spotted an error in the Supreme Court's Notice of Joint Family Claim (Form F1), Notice of Family Claim (Form F3) and Counterclaim (Form F5) that has apparently gone overlooked by the Ministry of Justice.

The problem is in the Lawyer's Certificate required by s. 9 of the Divorce Act when an action for divorce is started. According to the court forms, the certificate is supposed to look like this:
I, [name of lawyer], lawyer for [name of party], certify that I have complied with section 9 of the Divorce Act (Canada), which says: 
9 (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and  
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.
What David noticed is that s. 9 of the Divorce Act actually says this, with the phrase beginning "unless the circumstances" applying to both subsections (a) and (b):
9 (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and 
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, 
unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.
This is a small difference but an important one, especially since lawyers are certifying their compliance with the section, and lawyers should adjust their precedents accordingly without waiting for an amendment to the forms.

I'll add one further comment about the court forms, on an issue that has bothered me for some time. It's not necessary to refer to the Divorce Act as "the Divorce Act (Canada)," since there hasn't been a provincial Divorce Act in British Columbia for more than forty years following the repeal of the Divorce and Matrimonial Causes Act in 1972. Enough already.

2 comments:

  1. Try using the new Bill of Costs form. They have no section for non-taxable disbursements. If you are lucky enough to have IT and word pro to create a precedent for you, which includes hidden calculation codes, you still run into an issue with the taxable/non-taxable disbursements.

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  2. I just obtained my Divorce Certificate and noticed that the wording includes a grammatical error...

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