12 November 2013

Failure to Pay Child Support may Constitute "Family Violence" under the Family Law Act

In the recent decision of J.C.P. v J.B. the Provincial Court has characterized as person's failure to "pay child support on time and in the full amount" as "family violence" within the meaning of s. 1 of the Family Law Act, and then applied this finding to determine the appropriate arrangements for the care of the parties' child. This decision continues a trend toward the broad interpretation of "family violence" I last remarked on in my discussion of M.W.B. v A.R.B. in my post "Litigation Conduct may Constitute 'Family Violence' under the Family Law Act."

In J.C.P., Judge Merrick was asked to determine a range of issues including child support, parenting arrangements for a four-year-old and whether family violence had occurred. Each of the parents made allegations of physical and sexual violence against each other, with the conflict in the evidence provided which is commonplace when such claims are raised, such that the court could not determine what had actually happened. The court was, however, able to conclude that the father had committed family violence as a result of a combination of his failure to pay the full amount of child support owing and his other behaviour. 

Before getting to the case, a quick review of the meaning of family violence will help to explain where the judge was coming from. This is the definition found at s. 1 of the new act:
"family violence" includes
(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, 
(b) sexual abuse of a family member, 
(c) attempts to physically or sexually abuse a family member, 
(d) psychological or emotional abuse of a family member, including 
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, 
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, 
(iii) stalking or following of the family member, and 
(iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;
As you can see, this definition is very broad and can include inflicting psychological harm and restricting funds. Now let's look at Judge Merrick's decision (important bits in bold):
"[15] With respect to [the father's] failure to pay child support on time and in the full amount, I am satisfied that this failure, combined with his other actions and words, constitutes family violence. I am satisfied that his failure to pay was a calculated and deliberate act designed to inflict psychological and emotional harm and to control [the mother's] behaviour. I am satisfied that [the father's] goal was to destabilize [the mother's] parenting of [the child]. 
"[16] I have come to this conclusion based on the following:
(a) [the father's] repeated failures to pay monthly child support, as ordered, for more than a year despite having an ability to do so; 
(b) [the father's] communication to [the mother] that other than child support, what could he do to assist her in parenting [the child]; 
(c) [the father's] actions in placing $20 in [the child's] backpack which went back and forth with [the child] as if it was some form of an allowance for [the mother]; 
(d) [the father's] view that child support was not due on the 1st of the month, as ordered by the court, and that he could choose to pay it within the month and whenever he chose to within the month
(e) [the father's] initial reluctance to contribute to the cost of [the child's] required dental care; and 
(f) [the father's] steadfast refusal to pay child support despite the considerable number of urgings and the explanation by the court as to the importance of child support.
"[17] While it is true that, recently, [the father] has been fulfilling his obligation to support [the child], I have concluded, based on the repeated urgings of the court and the repeated warnings to [the father] about the provisions of [the extraordinary enforcement remedies] of the Family Law Act, that his recent compliance is due to the fact that he reasonably believed he would be imprisoned if he did not pay child support in accordance with the court order. 
"[18] While I am of the view that the failure to pay child support will not often constitute an act of family violence, when the failure is the result of a determined decision not to pay, knowing the impact it would have on [the mother], who had limited income, and my rejection of [the father's] explanation for failing to pay, I have concluded that this was designed to inflict psychological and emotional trauma to [the mother] and is therefore an act of family violence
"[19] I am also of the view that this has impacted [the child's] well-being and that [the father's] ability to care for [the child] is impaired. 
"[20] [The father] used a secret surveillance camera to record a parenting time exchange and then used those images in court to show how well the exchange went. [The father's] submitted that he did this to rebut any suggestion that a third party was required at the exchanges. If this was, in fact, the case, however, why would he not have advised [the mother] of that? The use of the images in court created a real concern for [the mother] as to what else has been secretly recorded. I am of the view that the use of the images in court was designed to inflict emotional trauma on [the mother] This does raise concerns about the appropriateness of an arrangement that would require the parties to cooperate. 
"[21] Finally, I agree that [the father's] recent breakfast invitation to [the mother] in [the child's] presence, without prior notice to [the mother], was designed to be coercive and controlling behaviour. [The father] knew that if he had asked [the mother] in advance, [the mother] would likely have declined the invitation. This, too, demonstrates that [the father's] ability to care for [the child] is impaired. In [the child's] presence, [the mother] had no choice but to agree. 
"[22] [The father] suggested that this showed that he and [the mother] could act as a family. It was controlling behaviour which, in the context of all of the evidence in this case, demonstrates [the father's] poor decision-making in matters relating to [the child]."
After determining that the father's behaviour constituted family violence and that the violence impaired the father's ability to care for the child, the court then concluded that:
  1. the parties would share decision-making authority on matters related to the child's social upbringing, giving or refusing consent for medical treatments and the receipt of information related to the child's health and education;
  2. the mother would have sole decision-making authority for determining where the child would live, extracurricular activities, passports and licences, the child's legal interests and the child's financial interests, as well as "any other responsibilities reasonably necessary to nurture" the child's development; and,
  3. the father would have parenting time with the child on a schedule more or less as proposed by the mother, which included plans for overnights and holidays.
If there are lessons to be drawn from this case, and I suggest there are, they are these.

First, the courts take a very dim view of any sort of manipulative behaviour that can be characterized as falling into the very, very broad scope offered by the definition of family violence at s. 1 of the act. This certainly includes efforts to control someone's life by playing around with child support. I have seen this sort of petty, juvenile behaviour far too often, usually by male payors of support who feel pissed off and aggrieved that they have to pay money to their ex and fail to understand that the money is actually being paid for the benefit of their children. Here are the some of the rules.
Child support is almost always due at the beginning of the month. If it's due at another time, the order or agreement will say so. You don't have the right to delay your payments because you're mad at the other parent or for any other reason.
Speaking of orders and agreements, you don't have to have an order or an agreement to pay child support to have to pay child support. You are liable to pay for the support of your children the moment you separate and you stop paying for common expenses.
You do not have the right to withhold or shortchange a payment for revenge because you haven't seen the children, because you are short of cash or for any other reason.
Second, the sort of scheming behaviour some people engage in, intended to show the weak points of the other parent, is rarely effective. More often than not, the surreptitious taping or recording of events makes the person doing the taping or recording look far worse than the person being taped or recorded. The court does not appreciate this sort of thing, especially when it is clear that what is being taped or recorded is actually a set up or has been provoked.

Let me wrap this up with one more quote from the decision:
"[49] For the reasons I have given, I am of the view that [the father] needs to change his behaviour. The family violence must stop. There must be increased cooperation. Conflict must be minimized. This is an example of the type of conflict and criticism that must stop. At the conclusion of this case, [the father] submitted, 'I maintain and present that what the sum of the evidence shows is that there was an intention to run the clock as long as possible to make me have as many mistakes, to reduce and imperil, even with the most serious complaints, completely imperil my relationship and the ability to have a relationship, a fulfilling relationship, a complete parental involvement with [the child]'.
"[50] I do not agree that there is any evidence to support that what occurred here was the 'running of the clock'. I think this is again but one illustration of the conflict and criticism that must end. 
"[51] Therefore, pursuant to s. 199(1)(b) of the Family Law Act, [the father] shall attend, participate in, and successfully complete counselling, including psychological counselling and parenting courses, and provide proof of his attendance at counselling. Such proof must be filed no later than 3 p.m., May 31, 2014, at the court registry in North Vancouver."
My thanks to my colleague Laura Track for bringing this case to my attention.

08 November 2013

Supreme Court Releases Judgment Critical of Children's Affidavits

Mr. Justice Brown has just released his reasons for judgment in Rashtian v. Baraghoush, a case about the parenting arrangements of two children, that are both very interesting and mercifully brief. Earlier in the year, the court had made a final order requiring the children to live primarily with their mother. The subject of the judgment was the father's application to vary the order to allow the eldest child, a twelve-year-old boy, to live with him. It seems that the boy had begun to run away from his mother's house in order to be with his father.

Counsel for the father determined that it was necessary to put the views of the child before the court; this was a likely a prudent decision, for two reasons. Firstly, as the judge observed:
"[8] The parties give conflicting affidavit evidence about the incidents of [the child] running away or refusing to go with his mother at the designated transfer time. The mother says the father has actively encouraged [the child's] conduct, while the father says he has tried unsuccessfully to persuade [the child] to return to his mother’s home and on at least one occasion has driven him back. The police were involved in one of these incidents after [the child] had been reported missing."
Secondly, s. 37(2)(b) of the Family Law Act requires the court to consider the child's views unless it would be inappropriate do so. In order to present the child's views, the lawyer arranged for the child to meet with an independent lawyer to make an affidavit. 

This too was arguably prudent, as the evidence presented at applications like this is almost always given through affidavits and because having a psychologist update the needs of the child report presented at trial can be costly and take an inordinate amount of time to complete. The court, however, took a different view:
"[10] Counsel for the respondent filed an affidavit from [the child] that was prepared by and sworn in front of another lawyer. I made it clear at the hearing that I considered the creation of that affidavit to be highly inappropriate and I have not read it. ... 
"[12] Although it is often important to make the court aware of the child’s views, I consider the least satisfactory method of doing that to be an affidavit drawn by a lawyer to whom the child has been taken by one parent without the knowledge of the other. The creation of such an affidavit draws the child deeply into the hostilities between the parents and there is a high risk of influence and manipulation."
I share the court's concerns. As I put it in a 2012 article in the Canadian Bar Association's journal The Family Way, "Thoughts on the drawing of children's affidavits," the strategy of presenting a child's wishes through an affidavit can be "problematic" (citations omitted):
"A child swearing an affidavit in the course of litigation between his or her parents becomes involved in that litigation. The decision to elicit the child's affidavit must not be made lightly; as the [Manitoba Court of Appeal] commented in Jay v. Jay, 'it can never be in the best interests of children to be placed in a position where they become a part of the adversarial dispute between parents'."
Although there are times when there is no reasonable alternative to an affidavit, I concluded the article by cautioning that:
"...merely soliciting the affidavit, whether it's used in court or not, involves the child in the conflict between his or her parents and is fraught with peril as a result. There are other means of eliciting children's views and placing them before the court, including views of the child reports and judicial interviews, all of which are discussed in detail in L.E.G. v. A.G., and in my view the appropriateness of these alternatives should be considered carefully before the decision to obtain a child’s sworn statement is made."
Despite its comments about the child's affidavit, the court ultimately honoured its obligation to receive the views of the child, and it did so through a judicial interview:
"[13] While declining to read his affidavit, I did take the step of interviewing [the child] in my chambers, in the absence of the parties and counsel. I was impressed by his level of maturity. He appears to have a strong bond with his father that he does not have with his mother. He did not appear to have had been coached, although that is a difficult judgment to make with certainty."
Of course, not all judges feel comfortable interviewing children — some feel themselves unqualified, others worry about inadvertently doing harm to the child, and others are concerned about evidentiary issues and certain other legal niceties involving the principles of fundamental justice and the decision-making process — and you should not count on a judge being as willing to speak to the children as Mr. Justice Brown was in this case. The best alternative, I think, would be to arrange for the child to talk to someone else, an independent and trained third party, for a views of the child report; non-evaluative reports can be obtained quickly and at reasonable price from people including the members of the BC Hear the Child Society.

My thanks to Nate Russell and Agnes Huang for bringing this case to my attention.

07 November 2013

Amendment Granted to Allow Unmarried Spouse's Claim for Property Under FLA

In her recently-released decision in Smith v. Anderson, Master Bouck has allowed a claimant's application to amend a Notice of Family Claim filed prior to the new Family Law Act to include property claims under that act.

As readers will recall, the Family Law Act extends the same property rights to unmarried spouses as its does to married spouses. Moreover, the act is not explicitly worded so as to prevent unmarried spouses who started court proceedings before the new act came into effect from changing their claims to ask for property order under that act. (On the other hand, married spouses who split up and started court proceedings before the new act are stuck with the old act.) As you can imagine, there has been much discussion among the bar about what should be done when someone wants to change an older claim to seek property orders under the new act. 

I happen to believe, at least for now, that there is little that can be done to stop someone from making such a change (see my post "Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act"); others take a different view. However, I also agree with the view of Master McCallum in Reynolds v. Huard that at a minimum an unmarried spouse must be within the two-year time limit set out in s. 198 when the property claim is added.

In the Smith case, the claimant had already made one amendment under SCFR 8-1(1)(a) — you only get one free amendment before the Notice of Trial is filed — leaving the respondent in the delightful position of being able object to the second amendment and force the issue to a hearing before trial. 

Master Bouck held that the basic law on such amendments was as summarized in Dawe v. B.C. Children's Hospital, a 2004 decision of our Supreme Court, in which Madam Justice Ross said this (cites omitted):
"[17] The general principles to be applied in the consideration of an application to amend are as follows: 
(a) amendments should be permitted as are necessary to determine the real question in issue between the parties
The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to "so that, as far as possible, all matters in controversy between the parties may be completely and finally determined; 
(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded; 
(c) a party is not required to adduce evidence in support of a pleading before trial; 
(d) on an application to amend the facts alleged are taken as established; 
(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient."
Master Bouck then reviewed the few number of cases of unmarried spouses wishing to amend claims to seek orders under the Family Law Act, namely Reynolds and P.N.K. v. C.L., another case in which an amendment was sought out of time, and observed that:
"[30] In neither case, however, does the court rule that the FLA will not apply to the circumstances in which Ms. Anderson and Mr. Smith find themselves. That is, an action already commenced but with a separation date arguably within the two-year period stipulated in s. 198(2)(b)."
As a result, she found that:
"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."
In the meantime, for the purposes of allowing the parties to prepare for the trial at which the applicability of the FLA remedies would be determined, the court concluded that it would be "just and convenient" to grant the amend of the Notice of Family Claim (important bits in bold):
"[33] First, I accept the claimant’s submission that denying the amendments would simply result in another action being commenced. A multiplicity of proceedings is to be avoided. A second action will certainly not lead to a speedy resolution of the parties’ dispute: Rule 1-3 of the SCFR. 
"[34] Second, I find that no fault lies with the claimant for the suggested delay in bringing this application before the court. The application could not have been made before the FLA came into force. The delay in having the application heard can be attributed to a number of factors, including both counsel’s other commitments and the vagaries of Supreme Court chambers time. 
"[35] As well, I accept that the respondent was given reasonable notice that these amendments were going to be pursued. 
"[36] Third, while it is appreciated that the amendments may lead to further discovery (and probably additional expert reports), any resulting prejudice to the respondent can be remedied by the trial judge in a costs award
"[37] Weighing all of these factors, I find that it would be just and convenient to grant leave to amend the notice of family claim in accordance with the draft pleading appended as Schedule “A” to these reasons. It is to be noted that this document includes a plea not found in the originally proposed further amended notice of family claim, namely a claim against the respondent for occupational rent. Claimant’s counsel did not believe that such a plea was necessary at law. The respondent takes a different position. Thus, it is just and convenient to allow this amendment to ensure that all matters between the parties are properly adjudicated upon at trial
"[38] The original further amended notice of family claim will be returned to the claimant as the document should be appended to the order submitted to the registry."
My thanks to the inestimable Agnes Huang for bringing this case to my attention.

05 November 2013

When Your Lawyer Isn't a Lawyer

The Law Society of British Columbia is the organization which regulates people practicing as lawyers in the province. Under the Legal Profession Act, the Law Society is also responsible for licensing lawyers, which gives it the collateral authority to take action against those who perform legal services but aren't licensed to do so.

When the Law Society runs into someone engaging in the "unauthorized" practice law, it usually applies to court for an injunction prohibiting the person from practicing law for a fee or representing him- or herself as a lawyer. The Law Society issues regular press releases summarizing its activities in this regard, such as its press release from 1 November 2013 which identifies five people who have been restrained from practicing law.

To find out whether the person you are thinking of retaining — or have retained! — is a lawyer, you should check the Lawyer Lookup tool on the Law Society's website or call the Law Society at 604-669-2533 or 800-903-5300. Or, you could take the opposite approach and see whether the person is listed in the Law Society's database of unauthorized practitioners. If you're hiring a lawyer to represent you in a family law matter, it makes sense that you'd want to make sure that the lawyer has the right training and knowledge and is approved by the Law Society to do so.

If it turns out that the person representing you isn't licensed to practice in British Columbia, you should terminate his or her services right away and hire a real lawyer. You do not want to have your legal position damaged by the advice or actions of someone who doesn't have the right knowledge, skills or training. You should also contact the Law Society and let it know what has happened to you.

As a footnote, since you're hiring someone to represent you with one of the most important problems you will ever have to deal with, you can go further and check the Law Society's hearing reports and admissions database, which identifies lawyers who have been formally cited by the Law Society for violations of its rules or code of conduct. The current citations and hearings page shows the status of all current citations and related disciplinary proceedings.