BC Family Law Resource Blog

Little Known Family Law Facts #4

2012-01-27T09:06:00.000-08:00

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.

Divorces à mensâ et thoro, legal separations, were provided for in the first commonwealth legislation on divorce, the English Divorce and Matrimonial Causes Act of 1857. 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by the proclamation of Governor Sir James Douglas, and remained on the books in this province until 1972 when it was repealed by the Family Relations Act. Since that time there has been no statutory authority for the legal separation in BC.

Kelowna Seminars on Children, Separation and Divorce with Joan Kelly

2012-01-26T20:32:00.000-08:00

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

2012-01-26T13:14:00.000-08:00

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.

Little Known Family Law Facts #3

2012-01-23T06:32:00.000-08:00

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.

Provincial Court Releases Decision on Pet Custody Battles

2012-01-21T08:36:00.000-08:00

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."

Helpful Calculators from the Federal Government

2012-01-19T09:53:00.000-08:00

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.

Little Known Family Law Facts #2

2012-01-17T19:06:00.000-08:00

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

2012-01-17T09:54:00.000-08:00

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.

Little Known Family Law Facts #1

2012-01-14T06:21:00.000-08:00

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.

The Validity of Same-Sex Marriages

2012-01-12T22:23:00.000-08:00

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:

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.)
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.

Supreme Court Decision Summarizes Law on Costs

2012-01-07T09:17:00.000-08:00

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.

Slight Increase in Funding for Legal Aid

2012-01-02T08:16:00.000-08:00

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.

New Child Support Tables in Effect

2011-12-31T18:25:00.000-08:00

Brand new child support tables came into effect today, just in time for the new year. As discussed in my post "New Child Support Tables for 2012," the new numbers aren't terribly different than the old and lots of payors will see their child support obligations actually decrease.

The new tables are available in the version of the Child Support Guidelines presently published by the Department of Justice. You can also use the Department's nifty child support calculator based on the new tables.

You can read the notice from the Department of Justice on the new tables; the regulation enacting the new tables is available from Canada Gazette website, and the tables for British Columbia can be found here.

Supreme Court of Canada Releases Decisions on Spousal Support

2011-12-24T09:40:00.000-08:00

The Supreme Court of Canada has just released a brace of decisions on the variation of spousal support orders in L.M.P. v. L.S. and R.P. v. R.C. L.M.P. is the primary decision, and R.P. applies the reasoning in L.M.P. in different circumstances.

In L.M.P., the wife was diagnosed with multiple sclerosis following the parties' marriage, stopped work and began to receive disability benefits. The parties separated after fourteen years of marriage and a year later, in 2003, signed a separation agreement under which the husband would pay spousal support to the wife, in an amount increasing with the cost of living and without an end date. The agreement was later incorporated into a court order. In 2007, the wife applied for an increase in child support thereby giving the husband the opportunity to apply to terminate his spousal support obligation.

At trial, the husband argued that the wife was capable of working and should work, and the issue was argued vigorously with expert evidence being led by both sides. The husband did not argue that the wife's ability to work was a change in circumstances from the separation agreement, however, nor did the trial judge make such a finding. At the end, the judge concluded that the wife was able to work and made an order reducing the wife's spousal support payments accordingly.

On appeal, the wife argued that the trial judge made a mistake in changing the amount of her support payments without find that there had been a change in circumstances. After s. 17(4.1) of the Divorce Act says this:

"Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration."

The Quebec Court of Appeal held that the although the trial judge didn't expressly mention the change in circumstances, her approach satisfied the requirements of s. 17. However, the court also said that held that the passage of time, accompanied by a failure to become self-sufficient can give rise to the required change of circumstances, and that the absence of a time limitation in the support agreement incorporated into the order could not relieve the payee of her obligation to become self-sufficient; I suspect that this is what lead the Supreme Court of Canada to want to hear the wife's further appeal.

The Supreme Court of Canada disagreed with both the trial judge and the Court of Appeal. Here are the highlights of the majority decision.

"[23] ... there are differences between what a court is directed to consider in making an initial support order and on a variation of that order. Notably, unlike on an initial application for spousal support under s. 15.2(4)(c), which specifically directs that a court consider 'any order, agreement or arrangement relating to support of either spouse', s. 17(4.1) makes no reference to agreements and simply requires that a court be satisfied 'that a change in the condition, means, needs or other circumstances of either former spouse has occurred' since the making of the prior order or the last variation of that order. Because of these differences in language, it is important to keep the s. 15.2 and s. 17 analyses distinct.

"[24] On an application under section 15.2, the court is expressly concerned with the extent to which the terms of an existing agreement should be incorporated into a first court order for support. On an application under s. 17, on the other hand, the court must determine whether to vary or rescind that support order because of a change in the parties’ circumstances. ...

"[29] In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order. ...

"[34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.

"[35] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances ... Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material ...

"[46] The examination of the change in circumstances is exactly the same for an order that does not incorporate a prior spousal support agreement as for one that does. A general statement that the agreement must be accorded 'significant weight', even though its implications in a concrete case are unclear, in effect raises the threshold necessary to establish a 'material change' under s. 17 when there is an agreement, and emphasizes legal certainty and finality at the expense of the statutory requirements of s. 17. ..."

You can probably guess where this is going. Whether a spousal support obligation is set out in an order or an agreement, to vary the obligation you first must establish that a material change in circumstances has occurred since the order or agreement was made. The nature of the required change varies from couple to couple, but in general the change must be significant and long-lasting.

Applying this test to the facts, the court held that the order ought not have been changed:

"[56] ... instead of determining whether there had been a material change of circumstances, the trial judge conducted a de novo assessment of the wife’s ability to work as if this were an original application for support under s. 15.2. In relying on this assessment to infer a material change of circumstances, the Court of Appeal fell into the same error.

"[57] The husband argued that the wife had a duty to seek employment based on the factors in s. 15.2(6) of the Divorce Act which were included in the agreement incorporated in the order. In particular, he relied on the objective that 'insofar as practical' there should be 'economic self-sufficiency of Plaintiff and Defendant'. Her failure to seek employment, he therefore argued, was a material change of circumstances.

"[58] We do not accept the husband’s submissions. There is nothing in the order suggesting that the wife was expected to seek employment. The order recognized that the wife was in receipt of disability payments. It provided for spousal support and included no term or provision for review. Its terms indicate that spousal support was intended to be for an indeterminate period. The order expressly acknowledged that the objectives of s. 15.2(6) of the Divorce Act were taken into consideration by the parties.

"[59] Neither does the Divorce Act impose a duty upon ex-spouses to become self-sufficient. As this Court affirmed in Leskun, the '[f]ailure to achieve self-sufficiency is not breach of ‘a duty’ and is simply one factor amongst others to be taken into account' (para. 27). Section 15.2(6)(d) of the Divorce Act simply states that the order should 'in so far as practicable, promote the economic self-sufficiency' of the parties."

Supreme Court judgments are rarely as clearly written. In essence, in the majority decision the court has digested the settled law on spousal support but clarified some lingering uncertainty as to whether the test on a variation under s. 17 is the same as the test for an original support order under s. 15.2, and emphasized the critical need to establish a material change when applying to vary an order. If a payor wishes to get out of a support obligation, he should ensure that the original agreement:

has a termination date or at least spells out the circumstances upon which the recipient's entitlement will end;
has a review date or at least sets the circumstances under which a review will be held; or,
requires the recipient to become financially independent.

Using its reasoning in L.M.P., the court concluded that the husband in R.P., another case from the Quebec Court of Appeal, had also failed to establish a change in circumstances justifying the termination of his spousal support obligation. In R.P., however, the change relied on was a change in the husband's financial circumstances.

Summarizing L.M.P., the majority said that:

"[25] Under s. 17(4.1) of the Divorce Act, the moving party must establish that there has been a material change of circumstances since the making of the prior order or variation. The applicable framework for this case is the one elaborated in the companion decision, L.M.P. To be material, a change must be one which, if known at the time, would likely have resulted in different terms to the existing order. On an application to vary, the court should consider the terms of the order and the circumstances of the parties at the time the order was made to determine whether a particular change is material. The existing order is deemed to have been correct and only if the requirements of s. 17 of the Divorce Act are met will there be a variation."

Fair enough. Turning to the nature of the claimed change in circumstances:

"[30] Under s. 17(4.1) of the Divorce Act the husband, as the applicant, had the burden of establishing that there has been a material change in his circumstances since those existing at the time of the 1991 Order. His argument that as of 2008 he was no longer able to pay support is an insufficient basis to support a finding of material change.

"[31] The record before this Court contains no evidence as to the husband’s financial circumstances at the time of the 1991 Order. During those proceedings, he challenged the wife’s entitlement to support, not his capacity to pay the amounts she claimed. Neither the reasons of the courts in those earlier proceedings, nor the record before this Court, contain information as to the husband’s then financial circumstances. ...

"[33] There are two crucial evidentiary gaps, however, in the husband’s financial circumstances. ... These gaps mean that we cannot assess how the husband’s economic circumstances compared to those in 1991. There is therefore no way of measuring whether there is any material change that would entitle him to a variation of spousal support."

Ouch. Without the evidence of the husband's financial circumstances then and now, there would be no way to measure whether the requisite change in circumstances had occurred or not, or if it had occurred, then to gauge the profundity of the change.

"[45] Here the husband could have led evidence capable of establishing his financial circumstances in 1991, but despite the clear requirements of the Divorce Act ... chose not to do so at trial, and failed to provide any explanation for his failure to do so. Absent some adequate explanation as to why no evidence has been adduced with respect to a party’s circumstances at the time of the order, no inference that a material change of circumstances has occurred is available."

At the end of the day, I'm not sure that either of these cases contribute much of any importance to the law on the variation of spousal support orders, at least not to the law as we know it in British Columbia. It may be that the courts of Quebec had lost their way somewhat — the Divorce Act is interpreted with a significant amount of regional variation across Canada — and needed to be put back on track.

Whether I'm right about the significance of these decisions or not, the judgment in L.M.P. is extremely helpful for its tidy synthesis and knitting-together of the important Supreme Court decisions on spousal support since 1994. Anyone who wishes to learn about the law on spousal support in Canada should start with Miglin v. Miglin and conclude with L.M.P.

Leave Required to Appeal Interim Divorce Act Orders

2011-12-18T06:23:00.000-08:00

My friend Agnes Huang, until very recently of the eminent Vancouver firm Schuman Daltrop Basran & Robin, has brought my attention to Elgner v. Elgner, a June 2011 decision of the Ontario Court of Appeal. Agnes and I have had some interesting discussions about the implications of the case in British Columbia which I think should be shared more widely, especially since the Supreme Court of Canada made the decision not to hear Mr. Elgner's appeal in November 2011.

The fundamental question raised in Elgner, and left somewhat hanging as a result of the decision of the Supreme Court of Canada, is whether leave is required to appeal an interim order under the Divorce Act.

"Leave" means the court's permission; an "interim order," also called an interlocutory order, is a short-term, temporary order made by a judge or and master between the start of a law suit and its conclusion by trial or settlement. If leave is required to appeal an interim order, someone unhappy with an interim order would have to make a preliminary application to the appeal court for permission to appeal an order before the appeal could be brought.

At present, and for the last several decades, we in British Columbia have proceeded on the basis that interim orders under the federal Divorce Act can be appealed as of right, without the necessity of leave, on the strength of s. 21(1) of the act:

"...an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act"

This was great, because s. 7(2) of the provincial Court of Appeal Act says that you cannot appeal an interim order without getting leave. Because of something called the doctrine of paramountcy, which has to do with how the constitution is interpreted, federal laws beat provincial laws on similar subjects, and if leave isn't required under the Divorce Act it can't be required by the Court of Appeal Act.

This was more or less the situation in Ontario when Mr. Elgner appealed an interim order without first seeking leave:

"[9] Mr. Elgner contends that s. 21(1) of the Divorce Act gives the right of appeal for all orders, interim and final, made under the Divorce Act. As the Divorce Act is federal legislation, he says that right is paramount over s. 19(1)(b) of the Courts of Justice Act [the equivalent of s. 7(2) of our Court of Appeal Act], which requires leave to appeal from interlocutory orders of judges of the Superior Court of Justice."

Unfortunately for Mr. Elgner, the Ontario Court of Appeal read s. 21(1) in light of other provisions of the Divorce Act, s. 21(6):

"Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed."

and s. 25(2):

"Subject to subsection (3), [the provincial government] may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings ...
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act."

In other words, although a plain reading of s. 21(1) suggests that leave isn't required, the Divorce Act expressly authorizes the provinces to make rules about appeals and says that Divorce Act appeals ought to proceed "according to the ordinary procedure governing appeals to the appellate court," and in British Columbia and Ontario leave is required to appeal interim order under the "ordinary procedure" spelled out in Ontario's Courts of Justice Act and BC's Court of Appeal Act.

Back to Elgner for a moment:

"[41] ... by spelling out in s. 21(6) that an appeal under s. 21(1) is to be 'asserted, heard and decided according to the ordinary procedure governing appeals', Parliament dictated that the provincial rules are to be followed when exercising the appeal right given by s. 21(1). As has been noted, s. 19(1) of the CJA was operative when s. 21(6) of the Divorce Act was enacted. It was the 'ordinary procedure' in Ontario for asserting an appeal from an interlocutory order. It can be assumed that Parliament, when enacting s. 21(6), was aware of the ordinary procedure in place in Ontario. It follows that Parliament could have inserted a provision that excluded the leave requirement. It did not. Instead, it chose to cede to the provinces the right to govern the procedure on appeal. ...

"[55] In conclusion, when ss. 21(1) and (6) of the Divorce Act are given their ordinary meaning and read in their entire context, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is clear that the right of appeal given by s. 21(1) is to be exercised in accordance with the ordinary procedures governing appeals of that nature. In Ontario, the ordinary procedure requires leave, if the matter to be appealed is an interlocutory order of a judge of the Superior Court of Justice."

Appeal decisions are rarely written with greater clarity and simplicity. Unfortunately, the reasoning in Elgner is directly applicable to s. 7(2) of our Court of Appeal Act, and the inescapable conclusion, should anyone choose to argue the point, is that leave is required to appeal interim Divorce Act orders in British Columbia. (In fact, I'm already aware of one case where the lawyer has decided to seek leave.)

On the one hand, this change in appeal practice will eliminate an uncomfortable distinction between interim orders made under the Divorce Act and those made under the Family Relations Act, for which leave is required. On the other hand, it raises a significant new barrier to Divorce Act appeals.

The general test for leave to appeal interim orders is set out in a 1992 decision of our Court of Appeal, Watson v. Imperial Financial Services Ltd. (I've put the important bits in bold):

"(a) The question to be decided on the appeal must be sufficiently important to the particular litigation or of such general importance that the court should hear it.

"(b) The court will consider the merits of the appeal and its prospect of succeeding, however, the mere fact that there may be some merit in the appeal, in that the Chambers judge may have erred in law or made a wrong assessment of the facts, is not necessarily determinative on an application for leave. The judge hearing the application may refuse it notwithstanding that he thinks there may be some error on the part of the Chambers judge who originally heard the application.

"(c) That the appeal is not vexatious, frivolous or simply a delaying tactic. In this respect the court will consider whether the appeal will incur needless expense and delays.

"(d) The court will consider whether the order being appealed decided any element in a final way and the effect of such interlocutory order on the parties to the action."

Watson was a civil case involving a bunch of corporations, but the key principles have been adopted in family law cases. This is how the test was put in Thorne v. Thorne, a Court of Appeal decision from 1997:

1. Whether the point on appeal is of significance to the general practice.
2. Whether the point raised is of significance to the action itself.

3. Whether the appeal is prima facie meritorious.

4. Whether the appeal would unduly hinder the progress of the action.

However, the court will impose a somewhat higher standard in family law cases than in general civil cases. For example, in Hyggen v. Hyggen, a 1986 Court of Appeal case, the court said:

"...in family matters it is only in the most extreme circumstances that leave to appeal will be granted in respect of interim matters."

and, to a similar effect in a 1998 case called Newson v. Newson:

"It is well settled that leave to appeal from interim orders in family matters should be granted only in extraordinary or, as it has sometimes been put, 'extreme' circumstances."

"Extreme" might be a bit extreme, but the point is that leave will be granted sparingly in family law cases as, I think, it should be. Interim orders are meant to give a measure of rough and ready justice by addressing issues that cannot wait until trial in a speedy, cost-effective manner; requiring a party to obtain leave will help to weed out meretricious appeals and avoid expensive delays.

My thanks, again, to Agnes for bringing Elgner to my attention. I have a sneaking suspicion that case is about to change how we practice family law in British Columbia.

Premier Clark on Facebook today until 3:00pm

2011-12-14T12:40:00.000-08:00

Premier Christy Clark is live on Facebook right now taking questions about the new Family Law Act. Log on and talk to the Premier at www.facebook.com/ChristyClarkForBC.

Cohabitation Agreements and the new Family Law Act:Why you probably want a cohabitation agreement

2011-12-12T08:53:00.001-08:00

In a previous post, “Why you DON’T Want a Cohabitation Agreement,” I summarized the law on the division of property between unmarried couples and how s. 120.1 of the Family Relations Act usually made cohabitation agreements a very, very bad idea when the purpose of the agreement was to protect property brought into a relationship.

That’s all changed as a result of the enactment of the Family Law Act on 24 November 2011. Let me explain.

Property, unmarried couples and the Family Relations Act

Under the Family Relations Act, married spouses are presumed to have a one-half interest in everything that qualifies as a “family asset.” The definition of family asset is so broad, however, that almost everything a married couple has is a family asset whether they bought it after the marriage or brought it into the marriage; most of the time, a married spouse is entitled to half of everything regardless of when and how an asset was acquired.

This isn’t the case for unmarried couples because unmarried couples are expressly excluded from the parts of the Family Relations Act that deal with the division of family assets.

Unmarried couples have no shared interest in any assets except those that they own together. When only one person owns an asset, like the family home, for example, it presumptively remains that person’s sole property, no matter how long the couple lives together.

Unmarried couples, trust claims and unjust enrichment

Of course, after a couple has lived together for five, ten or twenty years, it can seem somewhat unfair that only one of them has an entitlement to the family home, or the family car, or a business or whatever. In a case like this, the person who doesn’t own an asset tries to establish an entitlement by proving the existence of an express trust or a resulting trust, or, more commonly, by proving that the person who owns the asset was unjustly enriched by something the non-owner contributed during the relationship.

All of these claims are difficult to prove, and, even when successful, rarely result in a property interest any where close to the one-half interest the parties would have had if they had been married.

As a result, someone who didn’t want to share the assets being brought into a relationship would simply get some legal advice about how to avoid express and resulting trusts, and make sure that the contributions of the other spouse were always compensated in someway in order to duck an unjust enrichment claim.

Unmarried couples, cohabitation agreements and the Family Relations Act

Despite this rather favourable legal circumstance, people often wanted cohabitation agreements before entering into a long-term, live-in relationship, mostly to address the division of property in the event the relationship ended. Normally, this would be a sensible course of action; wouldn’t it be easier not to have to worry about unintentionally creating a trust relationship or being inadvertently enriched?

Not so. The problem here lay in a nasty little section of the Family Relations Act, s. 120.1. Under this section, if an unmarried couple made an agreement that dealt with property, the parts of the act that apply to the division of assets between married spouses applied to the unmarried couple making the agreement, and the cohabitation agreement was considered to be a marriage agreement.

This was very bad, for two reasons. First, s. 65(1) of the Family Relations Act expressly allows the court to vary marriage agreements it finds to be unfair. Second, the definition of “fairness” was the presumption of equal entitlement set out in s. 56 of the act which would otherwise have only applied to married spouses.

In a nutshell, as a result of s. 120.1, the standard of property division for married spouses applied to unmarried couples with cohabitation agreements, including certain presumptions about the division of property that would be far worse in effect than what the principles of trust law and unjust enrichment would have yielded in the absence of the cohabitation agreement.

Unmarried couples and the Family Law Act

Under the Family Law Act, unmarried couples that have cohabited for more than two years will have the same property rights as married spouses.

Under the new act, assets brought into a relationship and certain assets acquired afterwards, like court awards and inheritances, will be excluded from division between spouses. The assets that will be divided, and the presumptive division is an equal division, are the assets acquired after the relationship began as well as any increase in the value of the excluded assets.

From the point of view of the person who owns an asset, this is better than the law for married spouses under the Family Relations Act and better than the law for unmarried couples with a cohabitation agreement. However, there can still be some very significant consequences in sharing in the increase in value of an excluded asset — think of what has happened to the value of real estate in the lower mainland over the past 10 years, or the values of stock in Apple, crude oil and your Gretzky rookie card over the same period.

Despite the coming changes in the law, some couples will still want a cohabitation agreement, specifically couples who are in long-term unmarried relationships right now and couples with assets who expect to be in long-term unmarried relationships.

Cohabitation agreements, the repeal of s. 120.1 and the coming-into-force of the Family Law Act

The Family Law Act became law on 24 November 2011. Although most of the act, including all the parts about property division, are not yet in force, other bits came into effect right away, including s. 258 which had the effect of repealing s. 120.1. Fantastic! Since the Attorney General has said that the rest of the Family Law Act isn’t going to come into force for another 12 to 18 months, this means that we’re in the middle of a legislative sweet spot for unmarried couples.

Unmarried couples may now enter into cohabitation agreements without fear of the grim consequences of s. 120.1, and almost without regard to the property provisions of the Family Relations Act.

On top of that, unmarried couples probably want to enter into cohabitation agreements if they wish to avoid some or all of the consequences of the property division regime of the new Family Law Act. In other words, if there’s anything about how property will be shared under the new act that browns you off, now is your opportunity to do something about it, and you’ve got 12 to 18 months within which to get it done.

Get a cohabitation agreement and get it soon

For the next 12 to 18 months, couples across the province will be going through an unpleasant assessment of how their legal rights will fare under the new act. That’s okay, it’s a necessary consequence of change. However, if you are in a relationship of the sort that won’t require you to share your property, that’s going to change too, and if you want to do something about it and don’t want to end your relationship, the time is ripe to get a cohabitation agreement done up.

There will never be a better time to enter into a cohabitation agreement than right now, under the current law and between the repeal of s. 120.1 and the coming-into-force of the property provisions of the new Family Law Act.

Cohabitation agreements are somewhat complicated at the best of times; they’re somewhat more complicated now that we’re in the transition between one legal regime and another. You really must see a lawyer if you want to get a cohabitation agreement drawn up. If you don’t have someone to see, contact the CBA's excellent Lawyer Referral Service at 604-687-3221 or 800-663-1919.

New Blog on Shari'a Law in America

2011-12-09T19:30:00.000-08:00

I've just learned of an interesting new blog, Shari'a Index, which digests significant American court cases addressing Islamic law, features a collection of links to case law, and offers case commentaries on diverse subjects including Muslim finance and the enforceability of Muslim marriage contracts. Although the blog is just getting started, it's already worth a visit.

Supreme Court Releases Decision on Agents Appearing in Court

2011-12-03T10:03:00.000-08:00

The British Columbia Supreme Court has just released a decision, in the case of Ambrosi v. Duckworth, on the right of parties to have people other than lawyers appear in court on their behalf.

The problem arises from s. 15(1) of the Legal Profession Act which says that "no person, other than a practising lawyer, is permitted to engage in the practice of law;" s. 85 of the act makes it an offence, punishable under the Offence Act, to contravene s. 15. The Legal Profession Act offers a few exceptions to this general prohibition:

a party to an action may represent him- or herself;
any person who is entitled to vote in British Columbia may represent someone if the narrow criteria of the Court Agent Act apply (if there are fewer than two practising lawyers in town or if there are fewer than two lawyers with offices within 8km of the courthouse);
a non-lawyer employed by the Legal Services Society may represent someone within the limits of s. 12 of the Legal Services Society Act; and,
an articled student may represent someone to the extent permitted by the Law Society.

However, regardless of the Legal Profession Act, the court has the inherent right to control its own process and may, on a case by case basis, allow a non-lawyer to represent someone. That was the issue in Ambrosi when the applicant asked the court for leave for someone to speak on his behalf and present his application.

The judge began his analysis by looking at a 2002 case from the Court of Appeal, R. v. Dick (I've put the important bits in bold):

"[6] The Crown raised a preliminary objection ... and brought to our attention several reasons why [the proposed agent] should not be accorded the privilege of audience. We use the word 'privilege' advisedly, there being clear authority for the proposition that, subject to statutory provisions otherwise, it lies within a court's discretion to permit or not to permit a person who is not a lawyer, to represent a litigant in court. In particular we note the judgment of Lord Denning in Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service et al. ... where it was said that the discretionary power to grant a privilege of audience to other persons should be exercised 'rarely and with caution' ...

"[7] There are strong public policy reasons for this general rule. Each court has the responsibility to ensure that persons appearing before it are properly represented and (in the case of criminal law) defended, and to maintain the rule of law and the integrity of the court generally. As was said by the Ontario Court of Appeal in R. v. Romanowicz ... :

'The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused's constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (eg. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.

'It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused's right to a fair trial. Other examples where the administration of justice would suffer irreparable harm if an agent were allowed to appear are found in the material filed on this appeal. ... [There may be] situations in which the agent's criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied on to conduct a trial ethically and honourably.'"

To summarize this somewhat:

The court has the discretion to allow an agent to represent a litigant.
This discretion should be exercised with restraint, and should be exercised in bearing in mind the need to ensure that the litigant is well-represented, the rule of law is maintained and the integrity of the court is preserved.
The court should refuse to allow an agent to act when necessary to protect the proper administration of justice. This might be the case where an agent is incompetent or is unlikely to conduct him- or herself in an ethical manner.

Although the applicant presented a number of good reasons why the agent should be allowed to represent him, including the prejudice to his right to a fair hearing, his constitutional right to freedom of expression, his entitlement to appear by an agent of his own choice, and his right to have access to justice, the respondent presented a lengthy body of court decisions reflecting poorly on the proposed agent's past conduct in court. Ultimately, the judge held that:

"[55] I have not been convinced that I should exercise my discretion to allow [the proposed agent] to appear as agent for Mr. Ambrosi. I am satisfied that it would not be in the interest of justice to allow [the proposed agent] to appear as agent. ... I am satisfied that Mr. Ambrosi can afford a lawyer if he wishes, or may even be able to find someone more appropriate to appear as his agent. ..."

Family Law Act Third Reading Bill Posted

2011-11-29T09:35:00.000-08:00

Bill 16 has been posted on the legislature's website as it was passed on third reading. The new act, which will be formally cited as the Family Law Act, S.B.C. 2011, c. 25 (meaning the twenty-fifth chapter of the statutes of British Columbia enacted in 2011), has not yet been posted on the website of the Queen's Printer; the third reading bill is the closest we'll get to an official draft until the act is formally published.

New Child Support Tables for 2012

2011-11-26T12:45:00.000-08:00

The federal Department of Justice has announced new child support tables for the Child Support Guidelines which will take effect on 31 December 2011. The tables were last updated in 2006.

According to the Department's notice, the same formulas were used to determine the new amounts as were used in 2006, and any changes in the new tables are the result of changes in federal and provincial tax rules.

The changes are relatively minor. Some payors with incomes below $50,000 per year may see their child support obligations decrease:

$25,000 income
one child = $213 per month ($230 under 2006 tables)
three children = $533 per month ($525 under 2006 tables)
six children = $680 per month ($751 under 2006 tables)

$50,000 income
one child = $458 per month ($465 under 2006 tables)
three children = $998 per month ($994 under 2006 tables)
six children = $1496 per month ($1482 under 2006 tables)

Most payors, however, will see their child support obligations increase:

$75,000 income
one child = $701 per month ($698 under 2006 tables)
three children = $1483 per month ($1459 under 2006 tables)
six children = $2205 per month ($2162 under 2006 tables)

$100,000 income
one child = $921 per month ($906 under 2006 tables)
three children = $1923 per month ($1875 under 2006 tables)
six children = $2848 per month ($2770 under 2006 tables)

The Department has also published a great child support calculator for the new tables. Note that the old tables will remain in force until the new tables take effect at the end of December.

Family Law Act Receives Royal Assent

2011-11-25T09:35:00.000-08:00

Bill 16, the Family Law Act, passed third reading in the provincial legislature on 23 November 2011 seemingly without amendment and received Royal Assent yesterday, according to the legislature's excellent "Progress of Bills" webpage.

Although the act is now law, most of it — in fact, almost all of it — is not in force, and will not come into force except by order in council in, according to the Attorney General, 12 to 18 months.

Section 482 of the act sets out a table showing which parts of the act are in force now, and which will come into effect later on. Effective immediately:

Family Relations Act, s. 90 (parental support) is repealed
Family Relations Act, s. 120.1 (property agreements of unmarried parties) is repealed
Land (Spouse Protection) Act, ss. 1, 3, 5 and 6 are amended to make the act apply to persons who have cohabited in marriage-like relationship for at least two years
Property Transfer Tax Act, s. 1 is amended to make the act apply to persons who have cohabited in marriage-like relationship for at least two years
Evidence Act, ss. 6, 7 and 8 are amended to make "spouses" competent witnesses, not just husbands and wives

In addition, references to "husband and wife" or "a man and a woman" are changed to "spouse" or "two people" in the Family Relations Act, the Industrial Roads Act, the Insurance (Vehicle) Act, the Law and Equity Act, the Marriage Act, the Members' Conflict of Interest Act, the Property Law Act, the School Act, the Wills Act, and the Workers Compensation Act,

References to "father" and "mother" are changed to "parent" in the Mental Health Act, the Property Transfer Tax Act, the School Act, and the Workers Compensation Act.

Other minor amendments less susceptible to generalization are made to the Adoption Act and the Name Act.

Update

The Attorney General's office has posted a new webpage with background to the new act, the past discussion papers including the white paper, and news releases.

Supreme Court Releases Decision in Polygamy Reference

2011-11-24T07:25:00.001-08:00

On 24 November 2011, the Chief Justice of the Supreme Court of British Columbia released his decision in Reference re: Section 293 of the Criminal Code of Canada, otherwise known as the Polygamy Reference. The British Columbia Attorney General asked the court to declare whether the prohibition on polygamy under s. 293 of the Criminal Code was consistent with the basic freedoms guaranteed by the Charter of Rights and Freedoms.

The decision is a masterwork of legal analysis and I won't offer it the indignity of a synopsis. Suffice it to say that the government won.

On the main question, the constitutionality of s. 293, the Chief held that:

"[1359] For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.

"[1360] For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to persons who marry into polygamy before the age of 18 but are 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age."

To cure this minor defect, the Chief elected to limit the meaning of s. 293 to exclude its application to minors between 12 and 17 years of age:

"[1362] ... I would read down 'every one' in s. 293 to exclude the noted group of potential accused persons."

The Chief distilled the evidence presented and reasons for his conclusion in the introduction to his judgment:

"[5] I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.

"[6] Based on the most comprehensive judicial record on the subject ever produced, I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons.

"[7] I turn to some of the harms that are reasonably apprehended to arise.

"[8] Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.

"[9] Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.

"[10] Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.

"[11] The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.

"[12] Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.

"[13] Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.

"[14] Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists."

On the secondary question, the Attorney General's request for the court to determine the elements of the conduct s. 293 seeks to prohibit, the Chief held that:

"[1363] ... [T]he elements of the polygamy offence (s. 293(1)(a)(i)) and those of the conjugal union offence (s. 293(1)(a)(ii)) are the same:
an identified person, who
with the intent to do so,
practices, enters into, or in any manner agrees or consents to practice or enter into,
a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.
"[1364] Section 293 does not require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence."

This should be of assistance in any future attempt to prosecute a charge of polygamy.

This decision also offers helpful definitions of legal terminology in relation to marriage which I suspect will be of interest to readers of this blog, in particular the anonymous commentator who believes that British Columbia's legislation sanctions polygamy by allowing married persons who are not yet divorced to enter into unmarried common-law "spousal" relationships (see the comments to this post for further discussion of this point):

"[135] Polygamy is an umbrella term that refers to the state of having more than one spouse at the same time. It includes both polygyny and polyandry. Polygyny is the practice of a male having multiple female spouses. Polyandry is the converse, a female with multiple male spouses. ...

"[138] Polyamory is subject to varied definitions but refers generally to consensual relationships in which participants have more than one partner. ...

"[139] Bigamy is the act of entering into a marriage when one of the spouses is already married. It is criminalized by s. 290 of the Criminal Code:
290. (1) Every one commits bigamy who
(a) in Canada,
(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or
(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.
"[140] 'Form of marriage' is defined in s. 214:
“form of marriage” includes a ceremony of marriage that is recognized as valid
(a) by the law of the place where it was celebrated, or

(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated;
"[141] Bigamy is an indictable offence, and offenders are liable to imprisonment for a term not exceeding five years (s. 291).

"[142] The offence of bigamy focuses on attempts to enter into multiple marriages by means of the civil marriage process. Its commission involves perpetuating a fraud against the state in that the state’s marriage requirements are employed for a marriage that is a nullity. As the Law Reform Commission of Canada observed in Bigamy, Working Paper 42 ... at 11:
This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects: this is what makes it a real threat to the institution.
"[143] Bigamy frequently also involves a deception against one of the individuals involved.
"[144] In Canada, bigamy is distinguished from polygamy by the requirement of multiple state sanctioned marriages. Individuals who enter into multiple marriages but do not attempt to do so through the civil marriage process are not captured by the bigamy offence."

A Reply to the Times Colonist

2011-11-21T21:17:00.000-08:00

On 19 November 2011, the Victoria Times Colonist published a somewhat ill-informed editorial concerning the Family Law Act tabled last week in the legislature. As it happens, I like the new legislation, and I thought I'd provide a few comments in reply.

Here's the Colonist's editorial verbatim, without a word missing, in red with my comments following.

"A case can be made that the new Family Law Act, tabled Monday in the legislature, is the most far reaching social reform of our era. The massive bill completely redefines the civil structures that underpin marriage and family life."

This legislation certainly is an exercise in social policy. However, it doesn't "completely redefine" the civil structures that underpin marriage and family life; it redesigns property laws from a model shared with some of the maritime provinces to a model shared with Alberta and Ontario, and extends property rights from married couples to unmarried couples who have cohabited for at least two years. It doesn't change our recognition of unmarried spousal and parental relationships, and it doesn't change the law on child support or spousal support.

"It also rewrites the statute book. Close to 100 separate acts are being amended to accommodate the changes involved."

Most of the changes update references to "husband and wife" to "spouse" and "mother or father" to "parent" and are barely worth notice. More significant changes are only being made to the Commercial Arbitration Act, the Infants Act, the Child, Family and Community Service Act and the Vital Statistics Act, but the changes don't rewrite the basic scheme of these acts, they just accommodate them to the changes in the Family Law Act.

"In outlining the package, Attorney-General Shirley Bond has stressed two broad themes.

"The bill makes family law more child-centred. This is being done by changing the focus of custody hearings. In future, judges will be encouraged to set aside parental interests and award custody purely on the basis of what is best for the children.

"And there is a strong emphasis on mediation, rather than lawsuits, to settle divorce proceedings. These are valuable reforms, and the government is to be commended for them."

These are indeed the themes the Attorney General has chosen to emphasize. They're hardly the only important changes, they're just the ones that would fit into a sound bite for the evening news.

"The move toward mediation in particular is long overdue. Family quarrels currently occupy a quarter of all the court time in B.C. Anything that discourages divisive and wasteful litigation should be welcomed."

Actually, the move toward mediation has been underway for a couple of decades now and is hardly overdue. Mandatory mediation has been a feature of the Supreme Court civil system since 2001 and optional mediation has been available from family justice counsellors in the Provincial Court since 2003, never mind the judicial mediation offered at judicial case conferences and family case conferences.

"But important as these changes are, they are trivial compared with some real bombshells in the legislation. There are three to note:

"- At present, when a married couple separates, both are entitled to an equal share of all property. Current law draws no distinction between assets acquired during the marriage and those owned before it. All are divided equally.

"The adoption of this principle was one of the great emancipating forces of the 20th century. By protecting financially weaker spouses, who were often women, it made marriage a union of equals.

"But the new act eliminates this provision entirely. In future, property acquired prior to a marriage can be excluded if the spouse who owned it wishes. That sounds more like a Hollywood prenuptial agreement than a contract of marriage."

As I've mentioned, the current system for property division is shared by only a few other provinces. Most of Canada deals with property division on the Alberta and Ontario models which split property acquired after marriage equally and share in the growth in value of assets brought into the marriage; many people find this system of property sharing more intuitively appropriate than the current system.

The real "emancipating forces" which equalized women's property rights were the Married Women's Property Acts of the eighteenth, nineteenth and early twentieth centuries which gradually gave married women equal property rights with their unmarried sisters, and eventually equal property rights with their husbands... but this all happened long before the Family Relations Acts of 1972 and 1978. Or the Family Law Act of 2011, for that matter.

"- The act extends the division of property to common-law arrangements. Presently, couples who do not wish to marry can live together without merging their finances.

"That is being changed. If a couple cohabits for two years, upon separation either will be entitled to an equal share of whatever assets they accumulate. Pension contributions are included in the calculation.

"This is too heavy-handed. If the qualifying period were set at five years instead of two, such a policy might be justified.

"But it is unreasonable to extend marital obligations to couples who may have no intention of staying together.

"This will simply back up the court system even further, as the full force of law comes down on thousands of casual arrangements."

This too is an issue of social policy. Under the current law, unmarried spouses are excluded from the parts of the Family Relations Act that divide property between married couples. Under the existing regime, unless a couple own property together, an unmarried spouse gets nothing, no matter if the couple has been together for two years, five years or twenty.

An unmarried spouse who wishes to make a claim against property owned by the other spouse must make a difficult claim under the equitable doctrine of unjust enrichment, which may result in the spouse being entitled to some share in the property. Such claims are hard to prove, which means that they're expensive, and they rarely result in an entitlement anywhere close to what the couple would have had, had they been married.

The choice facing the government was to continue the inequity between married and unmarried relationships or to recognize the increasing frequency of long-term unmarried relationships and give unmarried spouses the rights married spouses have enjoyed since 1978.

The Colonist is right to observe that there is an element of unfairness to this for couples in existing unmarried spousal relationships. That is, however, the nature of legislative change; either it happens and hurts some people now or it never happens and hurts a lot more people as an injustice is perpetuated. Couples who wish to avoid the effect of the new act are best advised to get it together and make a property agreement now, before the new law takes legal effect.

"- While this omnibus bill deals with nearly every conceivable aspect of family law, there is one it ignores. There are no provisions to address the unequal treatment of fathers.

"It's well known that separation proceedings tilt against men when it comes to awarding child custody. In disputed cases, only 10 per cent of fathers are successful."

This is unmitigated and egregious hooey. This argument rests on an unproven allegation that fathers are treated unequally and ignores the fact that orders for joint custody have become the unwritten rule and presumptive starting point over the last fifteen years. More separated couples have joint custody of their children now than at any point in recorded legal history.

"The minister might believe her legislation deals with this concern by encouraging judges to ignore parental interests and focus on the children. But experience shows that the bias against fathers is deeply rooted in our family law system.

"In a statute several years in the drafting, this inequity should have been dealt with."

The Colonist cites no authority for this sweeping condemnation of the justice system. Surely before dropping its institutional weight behind such an allegation, the paper could point to some objective support for such a profound contention? I'm positive that such an august paper wouldn't base an unsigned editorial on mere rumour and carping innuendo.

"These are all issues upon which reasonable people can disagree. Yet there are huge issues at stake.

"Marriage is the most important wealth-creating and wealth-diffusing institution in modern society. As it stands, the new act weakens that feature of marriage, even as it foists unwanted obligations on short-term relationships."

If I understand this argument, the Colonist claims that the new legislation weakens the "wealth-creating" and "wealth-diffusing" qualities of marriage. I have no idea what this means, however if the point is that marriage is inherently wealth-creating, surely this feature is shared with the ever-increasing numbers of long-term, unmarried spousal relationships? What is it exactly which makes an unmarried spousal relationship less economically valuable than a married relationship?

The Colonist is also off base in assuming that unmarried relationships are inherently "short-term." Many of these relationships are just as long, if not longer, than married relationships, and many involve a degree of financial enmeshment that is no less significant for the fact that they are unsolemnized.

"Both parties in the legislature have agreed to pass the bill in just a few days, virtually sight unseen. That would be a serious disservice.

"Such immense changes require a full airing. The government should put this over to the new year, and allow for a proper debate."

As a matter of fact, the Attorney General's office has taken enormous pains since 2006 to expose this legislation to public comment. It is not the case that this bill emerged one morning like mushrooms after the rain; there have been extensive public consultations, with various public groups as well as with the bench and bar. This legislation is hardly a rush job, it has been five years in the making.

You can still find many of the background papers published by the Ministry in the course of the Family Relations Act Review on its website; the consultation report is an especially worthwhile read.

Update: 22 November 2011

As it turns out, two colleagues of mine have managed to preempt my reply. Read the letters to the editor of Trudi Brown, Q.C. and Mary Mouat.

Decision on Role of Illegal Conduct in Family Law Cases

2011-11-20T17:37:00.000-08:00

The kerfuffle surrounding the tabling of the Family Law Act has done nothing to staunch the flow of decisions issuing from the courts. That's a good thing, because in the judgment recently released in the case of Daemore v. Von Windheim, the Supreme Court had the rare opportunity to consider how a party's illegal conduct should play into its analysis of a family law problem.

The Latin maxim ex turpi causa non oritur actio — no right of action arises from a base cause — often abbreviated as ex turpi or ex turpi causa, stands for the principle that you shouldn't be able bring a law suit out of a problem which stems from your own wrongful conduct. For example, a thief injured while burgling a property shouldn't be able to sue the owner for negligence, and a drug dealer shouldn't be able to sue to recover his stolen stash. As you can imagine, this legal principle rarely crops up in family law disputes.

At the time of trial, the husband was 69 and the wife was 55. They had been together since the wife was in her late teens and had married in 1981, but were separated for 16 years by the time the husband's claims for spousal support and certain orders relating to property were heard. This is how the judge summarized the peculiar nature of the case:

"[3] The claims which are advanced by the parties are not, in concept, unusual. The circumstances which underlie these claims, however, are extraordinary. ... Both parties have repeatedly and on an ongoing basis, including in recent years, jointly engaged in various forms of wrongful activity. Their three children have participated in some of these forms of illicit or wrongful conduct. Several of the witnesses who appeared before me unabashedly acknowledged their involvement in earlier activity that was either criminal or fraudulent."

The parties' separate criminal careers, as summarized by the judge, are astonishing for their breadth and manifest disregard for the law; the problem this caused at trial was the judge's inability to accept the testimony of either of them. At the end of the day, however, the truthfulness of the parties was eclipsed by yet another problem:

"[60] I do not consider that there is any merit to any of the disparate claims advanced by Mr. Daemore or Ms. Von Windheim. Each of their respective claims suffers from various deficiencies arising from the application of those legal principles which are relevant to the particular claim. There is, moreover, an overarching impediment to many of these claims. This impediment is the result of the criminality and illegality which pervades most of the claims before me.

"[61] The maxim ex turpi causa non oritur actio, generally raised as a defence, but available to the court on its own motion, is directly relevant. The issues engaged by application of the maxim were not raised in the pleadings of the parties. They were raised by me in advance of argument and counsel were provided with a further opportunity to supplement their submissions in writing."

The judge then summarized the law on the issue (I've put the important bits in bold):

Hall v. Hebert, 1993 Supreme Court of Canada: "The power expressed in the maxim ... finds its roots in the insistence of the courts that the judicial process not be used for abusive, illegal purposes."
British Columbia v. Zastowny, 2008 Supreme Court of Canada: "The following principles and approach are established in Hall v. Hebert and are applicable in the present case. 1) Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort. 2) ... its application must be ... made subject to clear limits and should occur 'in very limited circumstances'. 3) The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law."
Randhawa v. 420413 B.C. Ltd., 2007 BC Court of Appeal: The maxim "applies in contract and in tort to maintain the internal consistency of the law ... The justification for the rule is the preservation of the integrity of the legal system; it should be applied sparingly. ... [I]t is not necessary to plead the doctrine. It is a question of law. It is necessary to plead the material facts to support the application of the doctrine."

These cases all deal with ex turpi causa in the context of contracts and torts. In Daemor, however, some of property claims were based in statute and others in the law of trusts. The judge continued:

BMF Trading v. Abraxis Holdings Ltd., 2002 BC Supreme Court: "The modern doctrine of constructive trust, which has been created to remedy injustice to innocent or vulnerable parties, is not a device to be utilized by sophisticated business people caught in the web of their own intrigue. Constructive trusts are not to be used as a reward to parties who have gained advantages by denying legal ownership of an asset, only then to assert ownership when it suits them at a later date. This court must not facilitate such manipulation."
Stoneman v. Gladman, 2005 Ontario Superior Court of Justice: "The trustee’s disinterest does not confer legal capacity on the plaintiffs, and unlike the trustee, they remain tainted by their professed acknowledgment that the scheme that they seek to have enforced is dishonourable and illegal."
J.T.L. v. R.G.L., 2010 BC Supreme Court: "Ex turpi causa is concerned not specifically with the lawfulness of contracts, but generally with the enforcement of rights by the courts. The courts will not enforce a right, which would otherwise be enforceable, if the right arises out of an act committed by the person asserting the right which is sufficiently anti-social to justify courts refusing to enforce that right. ... The purpose of the ex turpi causa rule is to defend the integrity of the legal system and the repute in which courts ought to be held by law-abiding members of the community."

Having thus established that ex turpi causa is a principle of general application available to the court whenever the integrity of the justice system is imperiled, the judge observed that:

"[77] ... The unlawful conduct of Mr. Daemore and Ms. Von Windheim is flagrant and pervasive. It arises not as a matter of inference, but is unequivocally acknowledged. Importantly, such illegality is central to many of the claims being advanced."

And further:

"[118] Here, the evidence of both parties is unreliable. There are also few proven facts from which I can make or draw appropriate inferences. Any such exercise would be wholly speculative. As a result, I do not consider that there is any principled basis for me to conclude that either party holds any specific additional property or to fix the value of any further family assets. If any unfairness results to the parties ... they have only themselves to blame."

Ultimately, the court dismissed the husband's claim for spousal support and certain orders based on the law of trusts; dismissed the wife's claim for child support but entirely reapportioned to her the properties she had been solely responsible for maintaining over the parties' lengthy separation.

Frankly, the specific result doesn't much matter; what does matter is the court's overview of the ex turpi causa maxim, his summary of its key legal principles, and his clear conclusion that the maxim applies to any relief claimed in court, whether under based on statute law or the law of contract, trusts or tort. This case will be essential reading whenever a party's criminal conduct relates to a claim he or she elects to advance in court.

The Early and Unlamented Deaths of ss. 90 and 120.1:Government takes quick action on parental support and unmarried persons' property agreements

2011-11-18T13:12:00.000-08:00

I've had the opportunity to take a more in depth reading of the transitional and repeal provisions of the Family Law Act, largely as a result of some issues brought to my attention by Nate Russell of Courthouse Libraries BC.

The nuts and bolts of the new Family Law Act run from ss. 1 to 244. The government's power to make the host of new regulations the act will require runs from ss. 245 to 249. The transitional provisions — the sections which guide the changes from the old Family Relations Act to the new Family Law Act — are brief and run from ss. 250 to 256. The really dry stuff, about the other laws that will be changed or repealed to accommodate the new act run from s. 257 all the way through to s. 482 and are dreadfully dry reading. This is, however, where you can find the really interesting things which motivated the call from Nate.

At the end of the act, further to s. 482, is a table showing which parts of the act come into force upon the act receiving Royal Assent which will come into force down the road by Order in Council. As readers will recall, the Attorney General has announced that implementation of the act will take 12 to 18 months. However, a close look at the table shows that some parts of the act will come into effect the moment the bill receives Royal Assent, two or three days after it clears Third Reading, and won't need to wait for the eventual Order in Council. (Read my post "The Present Effect of the Proposed Family Law Act" for a brief discussion about how a bill becomes law.) An acquaintance at the Attorney General's office has confirmed that this is indeed the intention behind s. 482.

Apart from some minor housekeeping changing references to "husband and wife" to "spouse," the provisions coming into effect right away will:

make the Land (Spouse Protection) Act available to unmarried spouses,
repeal the provisions of the Family Relations Act for parental support (s. 90), and
repeal other provisions relating to the effect of property agreements between unmarried couples (s. 120.1).

The last point is the most important, I think, although frankly the repeal of parental support is a close runner up. (Read my post "Parental Support in British Columbia" for an explanation of this subject.)

If you go back to my post "Why you DON'T want a cohabitation agreement," you'll see a long explanation about how s. 120.1 made the property rules applicable to married couples applicable to unmarried couples who had the misfortune to make an agreement about property. This meant that cohabitation agreements were usually very bad for the person owning property, as they could produce a far worse result than the worst case result without an agreement.

The repeal of s. 120.1 now means that unmarried couples can go ahead and enter into property agreements now before the rest of the Family Law Act comes into effect without getting caught by the unexpected and frankly counterintuitive consequences of s. 120.1. In other words, unmarried couples can make an agreement now to avoid the property sharing provisions of the new act without worrying about the negative consequences of the old act.

My thanks again to Nate for pointing this out.

Family Law Act Introduced!

2011-11-14T13:57:00.000-08:00

Attorney General Shirley Bond has this afternoon tabled Bill 16, the Family Law Act, for first reading in the Legislature. Assuming the bill becomes law, which seems a near inevitability given the government's comfortable majority at present, the new Family Law Act will completely revamp British Columbia's law on domestic relations and give us the most progressive legislation on relationship breakdown in the country.

In this post I will provide a rough summary of the key features of the proposed Family Law Act. Later posts will provide more details and better analysis, and examine some of the technical issues relating to the implementation of the new legislation. For more information about the background to the bill, click on the "White Paper" and "Family Relations Act" labels below.

A new emphasis on out-of-court resolution

The act encourages the resolution of family law problems by means other than litigation. The act gives equal emphasis to agreements and court orders, and provides better support for out of court negotiations by making complete disclosure mandatory in all cases and by imposing penalties for failures to make disclosure which result in the court setting aside an agreement.

The act will give the court new authority to refer parties to counselling and to out-of-court dispute resolution services like counselling and mediation, including as a means of helping parties comply with court orders. The court will be able to appoint a parenting coordinator to manage the implementation of orders and agreements involving children, even over the objection of a party.

The act also provides improved support for the arbitration of family law disputes and will make a host of changes to the Commercial Arbitration Act to better accommodate family law disputes.

A child-focused approach to parenting after separation

The new act throws out conflict-laden terms like "custody" and "access" and replaces them with a new model of parenting after separation which prioritizes a child's entitlement to proper parenting and meaningful time with each parent over a parent's right to control the child's upbringing and have a schedule of contact with the child.

Under the act, parents who have lived together after their child was born will be the child's guardians until they agree or a court orders otherwise.

People who are guardians, which may include people other than parents, have parental responsibilities in respect of the child, including the duty to raise the child, to make decisions about where the child lives and with whom the child spends time, and to make choices about the child's medical care, school, religion and so forth. Parental responsibilities can be divided or shared between guardians. The time a child is with a guardian is parenting time, and references in the legislation to parenting arrangements means arrangements made in respect of parental responsibilities and parenting time.

People who are not guardians, including parents who are not guardians, have contact with a child and do not have parental responsibilities. "Parenting arrangements" does not include arrangements made in respect of contact.

A new approach to the best interests of children

Decisions about parenting arrangements and contact, whether in an order or an agreement, are to be made in the best interests of the child. The best interests of the child are no longer the "paramount" consideration but the only consideration the court or the parties may take into account when making an order or agreement affecting a child.

The act provides a new, expanded definition of best interests which, among other things, requires consideration of: the child's views and wishes, the history of the child's care, the capacity of the child's parents, and any history of family violence. The act requires the court to assess the nature, extent and impact of family violence on the child's well being and provides a list of factors which the court must consider in making this assessment.

Planning for a parent's incapacity

The act allows guardians to appoint stand-by guardians to take over a guardian's parental responsibilities in the event the guardian is no longer able to manage those responsibilities. The appointment may take effect on the guardian's incapacity and may be permanent or last only for the duration of incapacity.

A guardian may also appoint a person to take over in the event of the guardian's death. Testamentary guardians may be appointed by the deceased guardian's will or through the execution of a new form.

Managing children's property

Under the new act, parents are not presumptively entitled to act as guardians of their children's property, except for property with a value less than a certain amount. Property guardians, who may include parents, must be appointed by the court in consultation with the Public Guardian and Trustee.

At last, some rules about moving with a child!

The act provides a mechanism to address mobility issues. This is welcome indeed as the law on this extremely difficult issue has so far been entirely governed by case law, much of which is inconsistent to the point of being contradictory, despite the Supreme Court of Canada's decision in Gordon v. Goertz.

Under the new act, a guardian wishing to "relocate" with a child will have to give 60 days' notice to anyone else who is a guardian or has contact with the child. Relocation means a change in a child’s residence “that can be reasonably be expected to have a significant impact on a child’s relationship” with a guardian or another significant person. A guardian who opposes a proposed relocation will have 30 days to from delivery of the notice to file an objection.

The act provides a test to determine whether the court should allow a proposed relocation when negotiations between the parties have failed: the guardian wishing to move must prove that the proposed move is being made in good faith and that reasonable arrangements have been made to preserve the child's relationship with the parent who is not moving. When the guardians have equal or almost equal parenting time, the guardian wishing to move must also prove that the move is in the child's best interests.

New rules about assisted reproduction

The new act makes extensive provisions for people having children by assisted reproduction. Until now assisted reproduction has been governed only by the federal Assisted Human Reproduction Act and the common law; there was no provincial legislation on the subject.

Under the Family Law Act, people will be able to contract for the donation of sperm or eggs, or for a woman to act as a surrogate mother carrying an embryo created with any combination of donated gametes, including or not the gametes of the people wishing to have the child. These contracts, as long as they are executed prior to conception, will be sufficient to determine the legal parentage of a child, and, if the parties to the agreement wish, can name more than just the people wishing to have the child as parents. A donor or surrogate may also be a legal parent.

Prioritizing child support obligations

Under the new act, as under the current law, parents as well as stepparents and guardians are responsible to pay child support. The new act will make the duty of a guardian who isn't a parent secondary to that of a parent, and a stepparent's duty to pay child support secondary to that of a non-parent guardian.

A payor's obligation to pay child support will continue to take priority over any obligation to pay spousal support, meaning that if a payor can't pay both amounts only child support will be payable. However, the end of a child support obligation may result in a reconsideration of the payor's spousal support obligation.

Independent children under the age of majority

Children younger than age 19 may stop being entitled to child support where they have voluntarily withdrawn from their parents' care, for reasons other than family violence or intolerable living conditions.

An expanded definition of "spouse" for spousal support

"Spouses" are entitled to apply for spousal support. Spouse, for the purposes of spousal support applications, includes:

people who are married or who used to be married;
unmarried people who have lived together in marriage-like relationships for more than two years; and,
unmarried people who have lived together for less than two years but have had a child together.

Married spouses must apply for spousal support under the new act within two years of divorce or the annulment of their marriage. Unmarried spouses must apply within two years of the date of their separation.

Harmonizing spousal support with the Divorce Act

The provisions for spousal support in the new legislation mirror those set out in the federal Divorce Act. A spouse's entitlement to support is determined by reference to a list of objectives and, once entitlement is found, the amount of support payable and the length of time it will be payable for are determined by reference to a list of factors.

The Spousal Support Advisory Guidelines is not referenced in the new legislation. This continues the present status of the Advisory Guidelines, which is not a law and has been formally adopted by neither the Divorce Act nor the Family Relations Act.

A limited revival of misconduct

Spousal misconduct has been a forbidden consideration since introduction of the no-fault amendments to the Divorce Act in 1968; before those amendments, spousal misconduct, such as committing adultery or being abusive, was a legitimate consideration in making or refusing to make a spousal support order.

The new act will allow the court to consider misconduct which causes or prolongs a spouse's need for support as well as misconduct which unreasonably affects the capacity of a spouse to pay support. The point here, I think, is to penalize: goldbricking spouses who fail to take meaningful steps to become self-sufficient within a reasonable period of time; oppressive behaviour which hinders or delays a spouse's ability to be self-sufficient; and, spouses who arrange a decrease in personal income to duck a support obligation.

Reviewable arrangements for spousal support

Orders and agreements on spousal support may require that provisions for spousal support be reviewable. A review can happen at a certain date or upon the occurrence of a specific event, and the order or agreement can specify how the review will occur — such as by a court hearing or by a process of mediation — and what issues or circumstances will be considered at the review.

Under the act, spousal support will also be reviewable when a spouse becomes entitled to receive benefits from a pension, whether the order or agreement provides for a review in those circumstances or not.

Making support obligations binding on a payor's estate

Orders and agreements for child support and spousal support can be made binding on a payor's estate. The court can also require a payor to maintain a life insurance with a spouse or child named as the beneficiary of the policy.

A new, more intuitive scheme for property division

Under the new act, there will be two categories of asset, assets presumptively excluded from division and assets presumptively divided equally. Under the Family Relations Act, almost all property owned by either or both spouses was up for division, regardless of who owned an asset or when it was acquired; all that mattered was whether the property was "ordinarily used for a family purpose."

Under the new act, excluded property includes assets acquired by a spouse before the relationship, gifts and inheritances received by a spouse, certain kinds of court awards and certain kinds of insurance payments. Except for the increase in value of excluded property during the relationship, excluded property remains the property of the spouse who acquired it.

Family property is primarily composed of the assets acquired by either spouse during the relationship and is owned by a spouse at the date of separation. Family property is presumptively shared equally between spouses.

The court can divide excluded property or reapportion family property but only when it would be "significantly unfair" not to do so. The point here, I think, is to raise the threshold of unfairness that must be met before the court can depart from the presumptive property division scheme.

As if these changes weren't enough, the new scheme for property division will apply to married spouses as well as unmarried people who have lived together for more than two years! This is a really important feature of the new law because unmarried couples are cut out of the parts of the Family Relations Act which divide property between married spouses, largely leaving unmarried people stuck with difficult and often unsatisfactory claims based on unjust enrichment and trust law.

Allocating responsibility for debts

The act will also allow the court to divide responsibility for "family debts" between spouses. Family debts are debts incurred during the relationship, or incurred to maintain family property after separation, and is presumptively shared equally between spouses

Addressing family violence

The act has a new definition of family violence which includes, in addition to physical abuse, sexual, emotional and psychological abuse, forcible confinement and restriction of a person's autonomy, and withholding the necessities of life.

When a person is at risk of family violence, the court may make a protection order which can include provisions restricting contact between the parties, restraining a party from going to the family home, restraining stalking-type behaviour, or restraining a party from possessing weapons. The new act provides that where another order under the Family Law Act conflicts with a protection order, the terms of that order are suspended to the extent of the conflict. This could mean, for example, that a protection order preventing communication between the parties might result in the suspension of a separate order for contact or parenting time if that order would normally require communication between the parties.

The Family Law Act contains no provisions to enforce protection orders. Instead, such orders can only be enforced by the police through s. 127(1) of the Criminal Code which makes it an offence to breach a court order.

Better management of court processes

Under the act, the court will be able to make a number of conduct orders intended to help the court manage its processes, manage the parties before it and encourage the settlement of disputes. Among other things, the court can order that parties attend counselling, impose restrictions on how they communicate with each other, and require that a party post a bond to secure his or her good behaviour.

Conduct orders include case management orders such as an order striking or dismissing all or part of a claim, an order prohibiting a party from bringing further applications without permission from the court, or an order requiring all further applications to be heard by the same judge.

The new act enhances the court's ability to enforce its own orders — except for the enforcement of protection orders — and the court may order that a party post security for the party's compliance with an order, pay the other party's expenses for enforcing an order, or pay a fine of up to $5,000. Where nothing else will secure a party's compliance, the court may order that the party be jailed for up to 30 days. These provisions apply to the provincial court as well as a the supreme court, and will significantly improve the provincial court's ability to deal with parties in contempt of court.

What else is going on?

In anticipation of the new act, the Supreme Court has revived its rules committee — yes, the committee which was responsible for the brand new family law rules introduced last summer — to overhaul them again to accommodate the new language, new processes and new orders available under the Family Law Act. The Provincial Court has struck a rules committee to the same purpose.

Whatever changes may flow from rules committees' recommendations, they are unlikely take effect any sooner than the coming into force of the new act.

A few final, but still preliminary, thoughts

I am, on the whole, tremendously impressed with the proposed legislation. It is progressive and forward-thinking, and puts the entitlements of children before the rights of their parents. It brings the law on domestic relations in British Columbia into the twenty-first century by squarely addressing the complex issue of assisted human reproduction, the nuanced impact of family violence and the increasing prevalence of long-term unmarried relationships. It also fixes a number of existing problems by giving the provincial court the teeth to enforce its own orders and by bringing the mechanics of property division more in line with people's intuitive expectations.

It remains to be seen, however, how the new act will work in practice. It is not clear to me, for example, how the enforcement of protection orders through the Criminal Code will work. Will the police cooperate in enforcing protection orders? Will enforcement get bogged down by the much higher burden of proof that applies in criminal matters? Or, to take a different subject, how will the presumption of shared guardianship unfold? Will it work to effectively and efficiently promote children's best interests, or will it instead encourage litigation by forcing angry parents into court to get an order terminating shared guardianship?

Despite these concerns, concerns which are relatively minor in light of the astonishing breadth of the new law, I remain optimistic that this legislation represents a significant and positive advancement over the the present law. The staff of the Ministry of the Attorney General have devoted an enormous amount of time to this project over the past five years and their efforts are to be recognized and applauded.

The Attorney General's news release on the new act can be found on the provincial government website. (One small correction, though: the first Family Relations Act was introduced in 1972, not 1978.)

Follow the new label "Family Law Act" to track my future posts on the new legislation.

Update: 15 November 2011

You can listen to me talk about the new legislation with Mark Forsythe on CBC Radio's BC Almanac. Topics discussed include the new roles of mediation and arbitration, custody and access reports and views of the child reports, spousal support and the new best interests of the child test.

You can read another post of mine on the background of the Family Law Act at Courthouse Libraries BC's The Stream. This post is written for lawyers and is somewhat more technical in nature.

The Other Side of the "Sham" Marriage

2011-11-12T08:05:00.001-08:00

The BBC has posted a great article about the burgeoning "wedding detective" trade in India, where there are apparently around 15,000 businesses willing to investigate a potential bride or groom. Most of the time these folks will be hired by the bride's family to investigate the groom and authenticate family status, verify income and capital assets, check for other wives or a history of infidelity, and verify sexual orientation. Says the BBC:

"The vast majority of enquiries come from parents who want to assess the 'character' of their future son-in-law ...
"The nature and scope of investigation depends on the moral or cultural values of parents. Someone from a more traditional Indian family might want to check up on whether a bride or groom drinks or smokes.
"Others might be keener to learn whether there are any past relationships, something which can still be frowned upon in India. Conducting a review of a groom's financial dealings and business assets is also common."

Because it is still fairly common for the bride to move in with her in-laws after marriage investigations can sometimes address the character of the potential mother in law:

"'We study the mother-in-law,' says [one detective]. 'How many times does she get angry, how many times does she throws the vessels out, how many times does she go shopping, what does she spend her money on. We understand everything about her and then put it in writing.'"

If only I'd known. Apparently, these investigations can become extraordinarily elaborate, involving "spy cameras hidden in watches, key chains, lockets and shirt buttons," complicated ruses and creative disguises:

"It is normal practice for [another detective] to wear disguises. He dresses as beggars, watchmen and drivers to gain access to a subject's house and life. There is no limit to what persona he might take on. [The detective] once posed as a pimp, after the parents asked for a 'honey trap' test."

Now, detectives are also hired in matrimonial matters in Canada, however here it's usually on an after-the-fact basis... or so I thought. For example, the oddly-named Deception Investigations claims to specialize in "domestic and matrimonial issues" and will surreptitiously investigate your beloved to determine whether he or she is having an affair, hiding assets and so forth, and also offers to chase people down who are in arrears of support. Much the same services are offered by Shadow Investigations and Advanced Surveillance Group.

However, reading Deception's website more closely reveals that they also offer "pre-marital screening." Another company, Surrey Private Investigator, offers the same sort of service under the curious heading "Relationship Investigations:"

"Does your lover have a secret past? Before you become involved with a person, you may decide to conduct a pre-relationship investigation for the purpose of looking into the background of the person with whom you share romantic interests or plan to marry. Isn't it important that you know if they are really who they say they are."

The website of Pinnacle Investigations is much more detailed about the services they offer:

"... A thorough back check is the key to making the right decisions when entering into new relationships where even the slightest suspicions are encountered. ... We conduct property searches, bankruptcy and judgment searches, lien searches, lifestyle checks and mystery shopping. ..."

Now, I can guess what "lifestyle check" is code for, but "mystery shopping" baffles me unless your fiancé or fiancée is a prostitute. Interestingly, Golden West Investigative Group takes a less literate, darker perspective on pre-marital inquiries, and seems to adopt the groom's perspective:

"When entering a partnership relationship (proposed marriage), there are times that one of the parties may be coming into the new marriage with considerably more assets than the other. It is becoming more common to have pre-nuptial agreements in such cases. It is also becoming more common for the party with the greater asset base to hire a firm like Golden West Investigative Group Ltd to conduct a thorough investigation and surveillance to make sure that everything is on the up and up before the marriage occurs. This may sound like a lack of trust but some people have enough assets to be an EASY MARK for a few unscrupulous people. It is sad... but so true in today's world of wealthy entrepreneurs. If you are entering a new relationship, be sure you know who your other future half really is."

It seems that the cultural background which makes the BBC story so charming isn't so far off from the values of the cynical but engaged in British Columbia!

Supreme Court Releases Important Decision on Lump Sum Spoual Support

2011-11-05T08:05:00.001-07:00

The Supreme Court has just released its judgment in Robinson v. Robinson, a case in which the parties had resolved everything on their own except for how spousal support should be paid and how much should be paid. The husband's liability to pay spousal support was admitted, however the wife wanted to receive spousal support in one large payment (a lump sup) or as a mix of monthly payments (periodic payments) and a lump sum; the husband preferred to meet his obligation by way of periodic payments.

Under s. 15.2(1) of the Divorce Act, the court may "make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable." The Family Relations Act says almost the same thing at s. 93(5).

Periodic payments are the most common form of spousal support. Periodic payments allow the payor and the recipient to make stable financial plans, and have the benefit of being tax-deductible for the payor. Periodic payments are also usually more affordable for the payor since few people have the cash lying around to make a large lump sum payment.

On the other hand, lump sum payments are attractive to payors who want to have done with their obligation and don't relish the thought of cutting a cheque each month to someone they're no longer very fond of. Recipients sometimes like the idea of a lump sum payment if the money will allow them to invest in a business or pay for education that will help them get back on their feet. Although lump sum payments aren't tax-deductible for payors, they're also not taxable income for recipients.

In the case of the Robinson family, by the time the case came to trial the husband was in his fifties, with a good income in the low six figures and living overseas with his new partner, and in recent years had suffered a number of heart attacks and a stroke requiring hospitalization. Quoting from the judgment, the wife sought a lump sum for the following reasons:

"[81] The wife is now [in her fifties]. She is unable to become and remain economically independent and self-sufficient without ongoing financial assistance from the husband. She seeks an order that the husband pay ongoing spousal support for an indefinite period. However, because of his past behaviour, and in order to terminate all contact with the husband, she seeks an order that the spousal support be paid in a lump sum.

"[82] The wife submits that both parties would benefit from a clean break, since they continue to have a difficult, stormy relationship and poor communication, which has not improved after many years. ...

"[83] She cites a number of other incidents of miscommunication and discord between the parties regarding financial matters, including: the withdrawal of funds from the parties’ joint account; the concern over the payment of ___ funds; and the situation regarding the purchase of the ___ condominium.

"[84] It is the submission of the wife that as the relationship between the parties has been strained since 20__ and became increasingly more difficult until the separation in 20__, and since the communication between the parties remains minimal and difficult, the clean break afforded by a lump sum payment is the appropriate form of spousal support in her circumstances.

"[85] The wife deposes that the wait each month to see whether funds will be forthcoming exacerbates her [illness], and she believes the stress and anxiety have a negative impact on her [illness]. A lump sum will alleviate this concern."

The husband sought to pay on a periodic basis and said that a lump sum would be inappropriate for these reasons:

"[88] The husband submits that periodic payments of spousal support are appropriate in these circumstances since a lump sum payment is made only in exceptional circumstances.

"[89] ... The husband is aware of no medical condition which would preclude the wife from taking employment, either in the past or currently. She has means, including her ability to earn income. The husband has consistently encouraged the wife to take either course work or find employment, but she has refused to do so.

"[90] On the basis of the circumstances of this case and the case law submitted, the husband submits that the wife should use her capital to generate income, as that capital is already available as a result of a reapportionment of the family assets. Means includes the ability to earn an income both personally and from one’s capital.

"[91] This is not a case where the husband can make back the capital [which a lump sum payment would require him to spend], since his income is now reduced from previous years’ income. ... She does not have a one-time need for additional capital.

"[92] Enforceability is not an issue in this matter, as the husband has an excellent record of [paying] spousal support."

The trial judge began her analysis by quoting from an appeal case out of Ontario released earlier this year, Davis v. Crawford (I've put the important bits in bold):

"[66] Most importantly, a court considering an award of lump sum spousal support must weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages of making such an order.

"[67] The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.

"[68] Similarly, the disadvantages of such an award can include: the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.

"[69] In the end, it is for the presiding judge to consider the factors relevant to making a spousal support award on the facts of the particular case and to exercise his or her discretion in determining whether a lump sum award is appropriate and the appropriate quantum of such an award."

Considering these factors, the judge concluded that the wife should receive the lump sum she sought: "lump sum spousal support will assist the wife to be self-sufficient and meet her needs to maintain her standard of living with use of the capital from the lump sum together with the capital achieved in the division and reapportionment of the family assets " and "the advantages of a clean break outweigh the minimal tax benefit of periodic payments in addition to a lump sum."

The question then turned to the calculation of amount, one of the main problems with lump sum orders identified in the Davis decision. After restating the relevant provisions of the Spousal Support Advisory Guidelines (ss. 3.4.2, 7.1, 10.1 and 10.2), the court reviewed a number of of the more important cases on the subject. Again quoting from the judgment:

As stated in Smith v. Smith [a 2006 case of the B.C. Supreme Court] ... "the present value of a periodic support stream in favour of Mr. Smith until Ms. Huntley attains age 65 would approximate $105,000, $123,000 and $140,000 at the low, mid and high points, respectively, of the range suggested by the draft guidelines. Allowing for income tax at an average rate of 30%, the after-tax present value amounts would approximate $70,000, $82,000 and $93,000, respectively. The reapportionment I have ordered, based as it was on markedly different income-earning capacity, accounts for approximately $50,000 of the present value of the future support stream."
In Wilson v. Wilson ... a 1997 decision of the B.C. Court of Appeal, the lump sum award was in an amount "equal to the present value" of the monthly payment.
In the case of Raymond v. Raymond ... decided by the Ontario Superior Court of Justice in 2008, the calculation of lump sum spousal support took into account the net amount of the mid-range figure from the SSAG, less 6% to represent the present value of the lump sum payment, and less 50% to take into account future contingencies.
In Durakovic v. Durakovic, ... also a 2008 decision of the Ontario Superior Court of Justice, the lump sum entitlement was calculated by using a monthly figure extrapolated for the number of months remaining in entitlement, less 30% for income tax payable, less 3% for present value, less 25% for negative contingencies which was noted to be "lower than other cases as there are only two years left to run on the calculation of the lump sum."

To summarize, then, in calculating a lump sum amount, the court can take into account:

the ranges proposed by the Spousal Support Advisory Guidelines formulas;
the tax consequences periodic payments would have attracted (a deduction to account for the tax the recipient would have owed on periodic payments);
the decreasing value of the dollar over time (another deduction); and,
the possibility of future changes which would have reduced the amount of the periodic payment (another deduction).

Applying these factors to a very learned understanding of the fine details of the Advisory Guidelines (and, I believe, her own calculations), the judge concluded:

"[123] An appropriate amount of monthly support is a starting point in the calculation of the lump sum.

"[124] With income of the wife of ___, support payable for 9 and one-half years, and the husbands’ accurate income and age of ___, the SSAG range of monthly payments provided by the computer application is $5,156, low, $6,016, mid, and $6,875, high.

"[125] The Without Child Support Formula ... provides for a range from 1.5% to 2% of the difference between the spouses’ gross incomes for each year of marriage up to a maximum of 50%. Taking 1.5% to 2% of the income difference results in a range of $5,755 to $7,633.

"[126] However, the maximum under the Formula is 50% of the income difference, which is $6,851.

"[127] Taking into account the Formula and the maximum, and the computer application of the Formula, the range is $5,156 to $6,851 per month. Taking into account the totality of the circumstances, I would determine monthly spousal support at the mid-point of this range or $6,000 per month as a starting point for calculation of the lump sum.

"[128] The lump sum calculations provided by the computer application of the Formula do not provide an appropriate result in this case where there is a restructuring of support ... to arrive at a lump sum. This is an example of an exception ... where the 'formula outcomes, even after consideration of restructuring, will not generate results consistent with the support objectives and factors under the Divorce Act.' ... [The] computer applications provide a reference point but an award that meets the requirements of the Divorce Act and Family Relations Act requires another method of calculation.

"[129] I prefer the method illustrated by the cases of Wilson, Durakovic, Raymond, and Smith, which take into account in various manners the factors of relative tax situations, an appropriate discount rate for the present value, and a contingency rate where necessary. In this case where the health of the payor spouse is subject to a heart condition which has required quadruple bypass surgery and continues to require medication, a significant contingency adjustment is required as there is a real possibility that the husband will not be able to continue to work until his planned retirement date.

"[130] There are 9 and one-half years or 114 months remaining for the payment of spousal support from December 2011, for a total of $684,000. From this gross amount, I would deduct tax which would be payable by the wife at an assumed rate of 35%. The discount rate for present value is 7%. To that amount I apply a contingency discount of 20%. The net amount is $330,782.

"[131] I find that the wife is entitled to lump sum spousal support in the amount of $330,000."

I expect this will be required reading for some time for cases involving not just the payment of spousal support as a lump sum, but the calculation of the lump sum when such an order is made.

I also appreciate and ask readers to note the judge's careful reading of the Advisory Guidelines. The Advisory Guidelines is very detailed and offers a nuanced range of exceptions and restructuring opportunities intended to help the formulas adapt to better suit complicated and unusual situations; too often lawyers overlook that deeper analysis and churn out calculations that don't consider these other options.

Access Pro Bono Launches New Website

2011-11-02T09:20:00.000-07:00

Access Pro Bono, the organization formed in 2010 by the merger of the Western Canada Society to Access Justice and Pro Bono Law of British Columbia, has just launched a fantastic new website at www.accessprobono.ca, thanks to funding from the Legal Services Society, the agency which provides legal aid in British Columbia. The new site is very user-friendly and easy to navigate.

According to the executive director, Jamie Maclaren, Access Pro Bono

"...made a conscious decision to focus the new site on the pro bono legal services that we offer to low-income British Columbians and how to access them, rather than the ins and outs of our organization...
"Today's launched version of the site is Phase 1 of our ongoing web development project. We will be adding more dynamic elements and more resources to the site in subsequent phases, including CLE-TV programs for pro bono lawyers, greater integration with Clicklaw, more BC-based legal resources, more videos introducing our many programs and projects, and better web-based access to our services."

The new site is quite sharp and worth a visit.

Wait, that's not spam, you've been summoned for jury duty!

2011-10-31T20:31:00.000-07:00

Bill 15, the Attorney General and Public Safety and Solicitor General Statutes Amendment Act, 2011, was tabled in the Legislature for first reading today. Among other things, the briefly-titled bill would amend s. 11(2) of the Jury Act to allow the sheriff to summon jurors for criminal trials by email.

Given the proliferation of phishing scams, it seems more likely than not that a potential juror would assume the sheriff's email was spam or a scam of some sort. Make a mental note: before you hit the delete key, double-check to make sure that the email isn't legitimate. You may be fined if you don't show up!

Read the Attorney General's press release on the new bill.

Federal Government Cracking Down on Sham Marriages

2011-10-26T21:55:00.000-07:00

The Globe & Mail today reports that Citizenship and Immigration Canada is working on a plan to reduce the number of marriages entered into for immigration purposes; the Globe article specifically mentions India and China as target countries where fraudulent marriage schemes are common. According to the Globe, regulations to be published later this year will allow Citizenship and Immigration to issue "a new 'conditional' immigration status," which I assume would be a conditional sponsorship approval, and limit sponsoring spouses to one new spouse every five years.

Marriage fraud has been on Citizenship and Immigration's radar for a number of years. Here's an extract from a speech delivered by immigration minister Jason Kenney at a golf club in India on 9 September 2010:

"We aim to reunite our citizens and permanent residents with family members and we recognize that most individuals who apply for family reunification are in genuine relationships.

"But we also aim to protect the integrity of our immigration system and uphold our laws by identifying and addressing fraudulent activity. This includes ensuring that fraudulent marriages are discovered and not used to circumvent our laws.

"Accordingly, if we find evidence during the sponsorship process that individuals are committing marriage fraud, we can and will refuse the application for permanent residence.

"Our officials at missions here and around the world are trained to assess relationships based on customs, traditions and practices of the specific cultures in which they work.

"I can assure you that the Government of Canada is working to limit abuse and fraud, and we will not be limiting immigration to Canada or the protection Canada provides to refugees."

Concerns like these led the ministry to undertake a series of public consultations later that year, the results of which have been published on Citizenship and Immigration's website and include recommendations for a conditional immigration status and limiting the frequency with which new spouses can be sponsored. Here is the summary conclusion drawn from the consultations, with emphasis added:

"In sum, those who participated in the consultation acknowledged concern about marriages of convenience. Most considered the issue to be a threat to the integrity of Canada’s immigration system, and the majority expressed a need for greater public education and awareness. A strong majority felt that the sponsor should bear considerable personal responsibility for ensuring that they were entering into a genuine relationship.

"Of the suggested measures proposed to address marriages of convenience, the leading option was for punishment of individuals found to be committing fraud (i.e. deportation, fines, legal action). Respondents also strongly supported increased investigative or screening measures, while just over half indicated that they were not prepared to tradeoff [sic] longer processing times for more investigations into potential cases of fraud. There was broad support for both the introduction of a sponsorship bar and for a conditional measure. For a conditional measure, the appropriate length suggested by most was for two years or less, followed by moderate support for a period of three to five years."

I have no doubt that marriage fraud is a problem for the federal government inasmuch as it undermines the coherence and public policy objectives of the immigration system. It's also a serious problem when the sponsoring spouse is unaware that the marriage was undertaken for ulterior purposes — the discovery of the other spouse's motives can cause no small amount of financial and emotional harm; see the 2006 case of Raju v. Kumar as an example of the harm which can be wrought.

Update: 1 November 2011

CBC has published an article on the enforcement side of this issue, and reports that through "Project Honeymoon" the Canada Border Services Agency has opened 39 investigations into suspected cases of marriage fraud since 2008, resulting in seven charges and three (count 'em, three) convictions.

Could it be that the rate of marriage fraud simply isn't as high as the immigration minister suggests? Or is it simply a problem of needing sufficient staff to address an problem which is inherently difficult to investigate? According to the CBC:

"... the internal border agency documents — disclosed under the Access to Information Act — acknowledge the cases require considerable resources, and many never make it to court."

Court of Appeal Releases Decision on Standard of Reasons for Judgment

2011-10-19T19:48:00.000-07:00

In a new decision, Shannon v. Shannon, the Court of Appeal discusses the adequacy of trial judges' reasons for judgment as a ground of appeal. "Reasons for judgment" are a judge's written decision about the facts of a case, the law which applies to the issues in dispute, and the judge's disposition of the issues in dispute by applying the law to the facts.

A judge's decision at trial can be appealed, however the appeal must establish an error of law or a gross misapprehension of the evidence to succeed; you don't get to appeal a decision just because you don't like it. In Shannon, the appellant claimed that the trial judge erred in law by "failing to provide adequate or sufficient reasons" for his valuation of an asset, and that in the absence of more fulsome reasons she could not assess whether the judge had made a mistake in his judgment.

The Court of Appeal dismissed the appeal after a thorough review of the applicable law. These are the highlights of the court's analysis, quoted directly from the decision:

> A trial judge has a duty to give adequate or sufficient reasons for his or her decision. Failure to give adequate or sufficient reasons for judgment is an error of law. (Willick v. Willick, [1994] 3 SCR 670; F.H. v. McDougall, 2008 SCC 53)

> The function of reasons for judgment is to explain what the trial judge has decided and why he or she reached that decision. (R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); R. v. R.E.M., 2008 SCC 51)

> Reasons for judgment should demonstrate "a logical connection between the 'what' – the verdict – and the 'why' – the basis for the verdict," when they are read as a whole in the context of the evidence and the live issues at trial, and the submissions of counsel. (R.E.M.)

> In the civil context, the duty to give reasons is to:
justify and explain the result;
tell the losing party why he or she lost;
provide for informed consideration of the grounds of appeal; and,
satisfy the public that justice has been done.
(R. v. Walker, 2008 SCC 34)

> An appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor is a failure to give adequate reasons a free standing basis for appeal. ... Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been. (F.H.)

> There is no free-standing right of appeal on the adequacy or sufficiency of a judge's reasons. Moreover, even where the logical connection between the evidence and the decision cannot be discerned ... appellate intervention will not be justified if the record itself permits meaningful appellate review. (R. v. Gagnon, 2006 SCC 17)

In Shannon, evidence about the value of the asset was available from the record of the Supreme Court proceedings in the form of an expert's appraisal and a rebuttal report prepared by another expert. Said the Court of Appeal:

"It is evident the trial judge was faced with a wide range of potential share values, calculated under two different valuation approaches... He understandably recognized his decision as to the value of the shares must be arbitrary to some degree, given the uncertainty associated with the Company's future. In choosing a fair market value of $500,000, it may be inferred that he began his analysis with [X]'s valuation of the shares as it was the only opinion before the court on that issue. However, he also appears to have preferred [Y]'s more optimistic portrayal of the Company's potential. This is evident in his finding that the Company would not be sold and had value as an ongoing concern. On the other hand, it is also apparent that he accepted that the unique features of this business and the uncertainties in the ... market limited its marketability and therefore its value as a going concern. In my view, the valuation of $500,000 takes into account these competing considerations. Thus while the 'why' for the trial judge's valuation of the shares could have been expressed more clearly, in my view it is adequately explained when examined in the context of the evidentiary record.

"The reasons for judgment in this case are to be distinguished from those considered by the Court in Crepnjak v. Crepnjak, 2011 BCCA 177... In Crepnjak, the necessary findings to support the chambers judge's conclusions could not be discerned from his reasons or the evidentiary record and, accordingly, the appeal was allowed and a new hearing ordered."

To boil this all down, the judge at trial has a duty to provide reasons for judgment which allow the parties and the general public to understand her decision and why she reached that particular decision. An appeal based on the insufficiency of reasons for judgment will only succeed where the reasons for a decision cannot be discerned from both the reasons for judgment and the record of the trial proceedings.

Marriage and the Material Girl/Boy

2011-10-14T20:50:00.001-07:00

The LA Times has reported on a study published in the Journal of Couple & Relationship Therapy, "Materialism and Marriage: Couple Profiles of Congruent and Incongruent Spouses," which found that "couples where both spouses are materialistic were worse off on nearly every measure." Says the Times:

"Statistical analysis of the research showed that couples who say money is not important to them score 10% to 15% better on marriage stability and other measures of relationship quality than couples who are openly materialistic.

"The study also found that couples in which only one partner is materialistic fare better than couples in which both partners are materialistic."

Well, they do say that money can't buy happiness, and that's certainly true during a relationship and after its collapse. I see some unusual things as a divorce lawyer, but it's always a surprise when I run into people who are more troubled by the potential damage to their material wealth than the prospect of losing contact with their children; what's not surprising at all is that people with this sort of attitude would have especially fractious marriages.

CBABC Launches Legal Aid Campaign

2011-10-13T10:33:00.000-07:00

The Canadian Bar Association, British Columbia branch has this morning launched a campaign (PDF) to pressure the provincial government to restore funding to legal aid. The newly-minted We Need Legal Aid website reviews some of the problems resulting from the cuts to legal aid and aims to build public support for the restoration of funding though social media.

The CBABC's effort follows up on the March 2011 release of the final report (PDF) of the Public Commission on Legal Aid, a joint project of the CBABC, the Law Society of British Columbia, the Law Foundation and other groups.

Legal aid in British Columbia is administered by the Legal Services Society, a non-profit organization funded primarily by the provincial government. The government began to implement a far-reaching series of budget cuts beginning in 2001 which have had a profound effect on the society's family law legal services (PDF), to the point where legal representation is only available where there is a safety risk, a denial of contact with a child or a risk that a child will be taken out of the province.

Please, read the commission's final report and take the time to visit the We Need Legal Aid website and get involved in the campaign.

Click on the "Legal Aid" label below for more information about the travails and tribulations of LSS over the last few years.

Supreme Court Releases Decision on Vexatious Litigants

2011-10-10T14:29:00.000-07:00

The Supreme Court has helpfully summarized the law on vexatious litigants in a new case, Vancouver City Savings Credit Union v. Randhawa.

In a nutshell, this issue has to do with the court's authority to control its own process and the parties before it. It can happen, but doesn't with great frequency, that a person will use the court system to initiate frivolous actions and applications seeking impossible orders without a real foundation in law. Sometimes these are the people whose make claims that the RCMP is attempting to control their thoughts through their toaster, and in the course of their claim against the RCMP also sue the Attorney General, Premier, Prime Minister and Queen for good measure. At other times, these are the people who have a legitimate grievance but lack the judgment to distinguish between the trivial and the substantive. Both sorts of litigant tend to appeal the judgments they don't like and appeal lost appeals, and their litigation gets stuck in an endless cycle of losing applications and losing appeals; these litigants lack the ability to understand that when the court says "enough," the court really means enough.

Section 18 of the Supreme Court Act provides an instructive gloss on the court's inherent jurisdiction to control its own processes and says the following, under the heading Vexatious Proceedings:

"If, on an application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court."

In other words, the court can require that a litigant not start an action, or bring an application in an action, without getting permission first.

For people stuck in endless meretricious litigation this can be a boon! Normally, you see, a litigant has the right to sue whomever he or she wishes, and, once the action is commenced, the right to apply for whatever orders strike his or her fancy whenever the moon is in the right phase. Normally, however, people exercise good judgment and are somewhat restrained by cost to bring only those actions and applications which are in fact meritorious.

In the Vancouver City Savings case, the credit union applied for a s. 18 order that the respondents:

"... be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against VanCity, or any of its officers, agents or employees without leave of the court."

The judge began his analysis quoting from the 2010 Supreme Court decision in Holland v. Marshall (I've put the key elements in bold):

"[7] To succeed on an application pursuant to s. 18, the applicant must demonstrate:
1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism. (British Columbia) Public Guardian and Trustee v. Brown, 2002 BCSC 1152.
"[8] In Lang Michener v. Fabian ... the Ontario High Court described the characteristics of a typical vexatious proceeding:
(a) bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions; and

(g) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action."

After a relatively succinct review of the lengthy history of proceedings, the judge said this:

"It is as apparent to me ... that the respondents have persisted in bringing 'a raft of doomed applications'. They have done so in the face of clear judicial pronouncements, directions or advice explaining the lack of jurisdiction of this court to set aside final orders or to revisit issues that have already been decided. ...

"It is apparent to me that in the face of the judicial criticism, advice and direction the respondents will simply continue to bring applications in this proceeding which have no objective or reasonable basis. They are acting habitually and persistently in the face of judicial direction and criticism."

As you might expect from concluding comments like these, the credit union obtained the order sought.

Family Law Act to Be Introduced This Fall

2011-10-03T14:18:00.000-07:00

The text of the Lieutenant-Governor's Speech from the Throne has just been published, and, in the context of a discussion about improving access to justice, says this:

"The government will introduce the new Family Law Act during this session, to promote early resolution of family law problems."

There you have it; change is coming! Here's some background reading:

My post "The Present Effect of the Proposed Family Law Act" discusses how a bill becomes a law and takes effect.
Another post, "White Paper Digest," summarizes the highlights of last summer's white paper, the discussion published by the government describing areas of potential reform.
And you can also read the white paper (PDF) itself.

If the new bill looks anything like the white paper, the law of domestic relations in this province is going to undergo a stem to stern overhaul which will place British Columbia at the forefront of law reform in Canada.

Visit the Legislative Assembly's website at www.leg.bc.ca/39th4th/index.htm to track the introduction and progress of the bill through the legislature.

Update: 14 November 2011

Bill 16, the Family Law Act, was introduced in the provincial legislature today. I've summarized the new legislation in a new post, "Family Law Act Introduced!"

Changes to Vancouver Chambers Practice in Effect Monday

2011-10-02T07:27:00.000-07:00

Chambers practice in the Supreme Court's Vancouver registry has been extraordinarily difficult for some time now. "Chambers" is where applications for orders before trial and applications for final orders on affidavit evidence are heard, and on any given day in Vancouver there might be forty or more applications set to be heard by a master and a twenty or more applications, usually lengthy ones, to be heard by a judge. However, each day only one judge and one master are assigned specifically to chambers and there's only four and a half hours in the court day!

Long wait times are nothing new but it has been increasingly difficult to get dates for lengthy chambers applications in reasonable time, and the overflow list of applications set for a specific date that could not be put before a judge or master is itself overflowing. (The court's list of available dates is publicly available on the court's website.) Opinion among the bar is mixed as to the cause, but three theories have risen to the top of the pond:

there aren't enough judges or masters;
court services is underfunded and there aren't enough registry staff; or,
the new Supreme Court Rules are somehow to blame.

Personally, I'm more inclined to number two; I know there are times in New Westminster and Vancouver where the court registry is drained of staff to serve as clerks in court and there still aren't enough staff!

Regardless of the ultimate cause, Chief Justice Bauman has announced (PDF) changes coming into effect in Vancouver on Monday 3 October 2011 intended to address these problems.

Registry staff will automatically bounce all applications where an application record is not received before the deadline prescribed in the court rules — 4:00pm on the business day that is one full business day before the date set for the hearing — rather than have them bounced by the court clerk.
Masters' chambers will be split into two lists, general civil and family law, and an extra master will be assigned to chambers when the list is full.
All applications set for judges' chambers under two hours will be sent off to Courtroom 31 to be referred to other courtrooms as judges become available, rather than having everyone mill around in the court registry.
Unscheduled applications, usually applications for short leave and for urgent orders, will go up to judges' or masters' chambers as before, but will be heard at the discretion of the presiding judge or master rather than automatically heard after short matters are heard.

I'm not sure what the practical results of 1, 3 and 4 will be, but I am excited about 2. This is the way things used to be until family and civil chambers were merged a number of years ago, and the assignment of an extra master will really help to clear the chambers lists.

Mexican Proposal for the Ultimate Starter Marriage

2011-09-30T11:02:00.000-07:00

The BBC has reported on a novel bill introduced to Mexico City's Legislative Assembly of the Federal District by Lizbeth Rosas Montero, a member of the Party of the Democratic Revolution, which would allow newly weds to enter into a marriage contract giving them two years to decide whether to call it quits or renew their vows. Says the BBC:

"Half of all marriages in Mexico City currently end in a split.

"[Montero] believes the contracts, allowing couples to 'renew or dissolve' the marital link after a pre-arranged term, would lead to more harmonious relationships and reduce the workload on family judges.
"Terms governing healthcare provision, the way children are educated, how much money was needed to support the family, and how dependents would be looked after in the case of a break-up would be set out in advance."

This is an interesting idea, which would seem to take the most useful features of a marriage agreement and add a fixed date when the parties would review not just the continuing fairness of their agreement but the continuing value of their relationship. Although I'm certainly in favour of reducing the court's workload, I'm not sure the idea has much potential for Canada given the ease with which couples are presently able to divorce under our present no-fault system.

Court of Appeal Releases Decision on Child Support Liability of New Parent to First Family

2011-09-25T16:08:00.001-07:00

The Court of Appeal has just released an interesting decision on a payor's application to suspend her child support obligation to her first family as a result of being on maternity leave for a new child in her second family. (As you might imagine, it is usually men who are the payors of child support and the situation before the court in McCaffrey v. Paleolog requires the happy coincidence of a mother paying child support while becoming pregnant in a new relationship.) The appeal in this case was complicated by legal issues concerning the history of the proceedings, but the reasons from the Court of Appeal are clear enough that we can focus on the law that will be of more general interest.

When a mother paying child support takes maternity leave as a result of a pregnancy in a new relationship, she will usually want relief from the child support obligation to her first family for at least the period she is in receipt of reduced income from maternity benefits. This raises three critical questions for the recipient.

Is the pregnancy a "material change in circumstances" justifying the payor's application to vary her child support obligation?
If child support will be reassessed, should income be imputed to the mother under s. 19(1)(a) of the Child Support Guidelines on the basis that she is underemployed while on her reduced income?
To what extent should the first family suffer as a result of the payor's choices in a subsequent relationship?

Normally, the courts would leap to impute income to a payor who decided to take a year off work or voluntarily took a position with lower pay. In cases like this, however, there is arguably some necessity to the payor's choice, and the answer to these questions lies in the case law interpreting s. 19(1)(a) of the Guidelines.

This is what that subsection says (I've put the important part in italics):

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

And this is what the Court of Appeal said (you should read the case yourself for the background to the court's analysis):

Imputing Income

Income may be imputed to a parent who is intentionally underemployed unless the parent establishes under s. 19(1)(a) of the Guidelines that the needs of the new child require her to remain at home.

Exception for Children Under the Age of Majority

Having a newborn child or a child of very young age will generally suffice to meet the Guidelines requirement, however "childbirth does not provide an automatic relief from a parent’s child support obligations," and the circumstances of the payor must be examined to determine eligibility in each case.

Guidelines for Imputing Income

The circumstances of the payor should be evaluated using the following factors, which the Court of Appeal, in a 2004 case called Watts v. Willie, borrowed from a 2000 case from the Manitoba Court of Appeal, Donovan v. Donovan:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...

"2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

"3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

"4. Persistence in unremunerative employment may entitle the court to impute income.

"5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

Limit to Relief from Child Support

Where a payor is found to be entitled to the exception for a newborn or very young child, any suspension of her child support obligation must be only for a reasonable period of time, bearing in mind:

the financial situation of the payor's present family, since it is the needs of that child which support the s. 19(1)(a) exception, and
the financial situation of the first family, where the non-payment of support has a particularly harsh effect.

"The circumstances may compel an almost immediate return to work or may provide for full or part-time in-home assistance."

Summary

I can do no better than the court's own summary of its reasoning, found at paragraph 58 of the decision.

"In summary in a case like this:

"1. income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the needs of a child require the parent to remain at home;

"2. it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but

"3. childbirth does not provide an automatic relief from a parent’s child support obligations;

"4. the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan ... ;

"5. any period of non-support must be reasonable in the circumstances."

Fall Legislative Calendar Published

2011-09-22T09:03:00.000-07:00

The Legislative Assembly has published its calendar for the fall session, formally known as the fourth session of the thirty-ninth provincial parliament. The Speech from the Throne will be made on Monday 3 October 2011 and the legislature will sit until 24 November 2011, with time off during the weeks of October 10th and November 7th.

With any luck, a bill will be tabled proposing new legislation to replace the Family Relations Act, as foreshadowed by last year's white paper (PDF), at some point during this session. The only question, I think, is whether the government will introduce such significant, marquee legislation when the current Attorney General has been appointed on an interim basis only.

I will publish a link to the page on the Assembly's website where you can monitor the introduction and status of new bills when it becomes available.

For more information about the white paper, click on the "White Paper" label below; I've previously written about the legislative process and the current effect of the proposed law here.

Update: 3 October 2011

You can monitor the status of new bills introduced in the legislature on this page: www.leg.bc.ca/39th4th/index.htm

Parental Support in British Columbia

2011-09-20T08:45:00.000-07:00

"In relieving you from your legislative duties, it is with pleasure that I express my appreciation of the earnestness with which you have applied yourselves to the important questions submitted for your consideration.

"I note with gratification the humanitarian aim of measures to provide for the maintenance of the children of unmarried parents, and for the support of needy parents by their children."

The new act imposed a duty on children to provide for the support of their parents, and allowed a parent in financial need because of "age, disease or infirmity" to apply for an order requiring the child to pay parental support.

The Parents' Maintenance Act continued until 1972 when it was repealed and its core provisions merged into the new Family Relations Act, now s. 90 of the current act, as follows:

Obligation to support parent
90 (1) In this section:
"child" means an adult child of a parent;
"parent" means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.
(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.

Treatment by the Courts

Despite the fact that legislation on parental support has been around for about 90 years, very few people have actually advanced claims for child support, in fact there are only nine or ten reported decisions on the subject! Those nine or ten cases are enough, however, to get a sense of how the court has handled parental support claims, and here's a summary of the basic principles:

The adult child's need to support him- or herself, a spouse and any children rank ahead of the adult child's obligation to support a parent. (Hua v. Lam, 1985 BC Provincial Court)
Any estrangement between the adult child and his or her parent, and the reasons for that estrangement, are factors to be taken into account in ranking the needs of the adult child. (Newson v. Newson, 1997 BC Court of Appeal)
Support may be payable when the conduct of the adult child has caused the dependence of the parent. (Peach v. Emlyn, 1999 BC Supreme Court)
When the parent seeking support has a spouse, the parent must first look to his or her spouse for support before claiming it from any adult children. (Puskeppelies v. Puskeppelies, 1997 BC Supreme Court)
A parent liable to pay spousal support cannot apply for parental support for the spouse in order to duck the spousal support obligation. (Smeland v. Smeland, 1997 BC Supreme Court)

The Future of Parental Support

In the white paper (PDF) on family law reform, published last summer by the Attorney General, the government proposed not to carry provisions for parental support forward into any new law which might replace the Family Relations Act. This would effectively terminate further applications for parental support if the Family Relations Act is repealed, and seems to be a sensible decision given the well-reasoned recommendations of the British Columbia Law Institute in its 2007 report on the subject.

You can find additional information about parental support on my website in the first chapter of the Other Family Law Issues section.

Supreme Court Releases Important Decision on Standard of Interpretation

2011-09-18T16:40:00.000-07:00

The Supreme Court of British Columbia has released an important new decision, Luu v. Wang, on the degree of competency required of those who interpret English-language affidavits being sworn by non-English-speaking deponents.

The problem begins with the somewhat ambiguous provisions of Supreme Court Civil Rule 22-2(7) (Rule 10-4(7) of the Family Rules):

"If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit."

Since every document filed in court must be in English (SCCR 22-3(2), SCFR 22-1(2)), this rule is meant to explain how you deal with someone who needs to make an affidavit (a "deponent") but doesn't speak English. In a nutshell, a "competent interpreter" is required to read the affidavit to the deponent, who must then sign a certificate on the affidavit confirming that the rule has been complied with.

The problem in Luu was that rule doesn't define what "competent" means and doubt had been cast on the neutrality of the interpreter. This is what the certificate required by the Rules says:

ENDORSEMENT OF INTERPRETER

1. I have knowledge of the English and _____________ language and I am competent to interpret from one to the other.

2. I am advised by the person swearing or affirming the affidavit and believe that the person swearing or affirming the affidavit understands the _____________ language.
3. Before the affidavit on which this endorsement appears was made by the person swearing or affirming the affidavit, I correctly interpreted for the person swearing or affirming the affidavit from the English language into the _____________ language, and the person swearing or affirming the affidavit appeared to fully understand the contents.
Signature of Interpreter

This doesn't set an objective standard of competency either. It merely requires the interpreter to believe that he or she is competent to interpret and say so, and makes no demand that the interpreter be neutral.

The judge resolved the problem by referring to a 1994 criminal case from the Supreme Court of Canada, R. v. Tran, in which the court held that:

the right to an interpreter is guaranteed by s. 14 of the Charter of Rights and Freedoms;
the translation must be impartial, objective and unbiased; and,
this right is "held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses."

Accordingly, the judge in Luu concluded that:

"Where, like here, a reasonable doubt has been raised about the interpretation, the Court is in a position to conduct an inquiry into the qualifications of the interpreter or to set into motion a new interpretation which complies with the qualifications that should be expected of all interpreters.

"Here, there are legitimate reasons to doubt the objectivity of the interpreter. In the circumstances, I am satisfied that the Plaintiff has raised sufficient doubt regarding the competency and neutrality of the interpreter that it is appropriate to require a new affidavit from SZ.

" There will be an affidavit prepared in the Mandarin language. That affidavit will set out the same content as the August 11, 2011 affidavit of SZ. The new affidavit will be endorsed by an interpreter other than his daughter, BZ. The new interpreter must be one who is a certified interpreter."

I don't think it is necessary to read Luu as requiring that all interpreters be certified, but where there are doubts about the competence and neutrality of an interpreter, the court will inquire into the interpreter's skills, objectivity and impartiality. Since this problem comes up quite frequently in family law cases, where affidavits are commonly interpreted by relatives, friends, neighbours, nannies and dog walkers, if an affidavit is particularly important, it is highly advisable to have it interpreted by a neutral third party at the very least, and interpreted by a professional interpreter at best.

Your Computer, Your Separation and You

2011-09-12T19:00:00.000-07:00

This post is about managing your electronic life after you and your partner have split up.

Change Your Passwords

Change all of your passwords to all of your electronic accounts. This includes your bank accounts, your ISP email account, your Hotmail, Yahoo and Gmail email accounts, your Twitter account, your blog and your Facebook accounts, and any other account you access through the internet. (Don't forget to reset the password to your computer, your phone and your voicemail while you're at it.)

You will also want to change your telephone access passwords with your bank, credit union and credit card companies, and you should update the list of people authorized to make changes to your utilities.

When you're picking a new password, don't pick the name of a child or pet or anything else which can be quickly guessed; you would not believe the number of clients of mine whose exes have hacked their accounts after the passwords had been changed! What you're looking for is a random word and a couple of numbers, plus a special character or two if they're allowed, which you can easily remember. For example:

27pickles#

cranky8fish!

h0m3sw33th0m3

If you can only pick numbers, don't pick four of the same number, 1234, your birthdate or a child's birthdate; pick something random and change it frequently.

Emails, Texts and Instant Messaging

Work on the assumption that everything you text, twitter or email to your ex will find its way into an affidavit. Write each message as if a judge will be reading it!

If you're on the receiving end of an unpleasant communication, on the other hand, keep a copy and make a print out. (This can be challenging with texts, but it can be done.) You must also resist the temptation to lash out and reply in kind.

Facebook

In addition to changing the permission settings for your ex, you want to be moderate in what you post. You know how you and your ex have all those friends in common? Assume that someone will be keeping your ex up to date.

Do you have any other tips to share? Please add a comment to this post.

That's an Expensive Headache: Wife Receives Damages for Husband's Indifference

2011-09-06T13:08:00.000-07:00

The Guardian has reported on the curious case of the French wife who sued for divorce based on, I assume, a violation of the duties of marriage under Article 242 of the French Civil Code. What makes the case interesting is the judge's decision to fine the husband 10,000 euros to compensate the wife for the particular violation complained of, namely "lack of sex over 21 years of marriage."

Under the antique English common law, marriage came with an abundance of rights and duties. The husband had the duty to provide his wife with the necessities of life and had the right to her domestic services, the right to her property and income, and the right to have her live with him and have sex with her as he wished, called consortium. It seems that the French civil code developed in a similar manner. Title V concerns the law on marriage, including the obligations marriage gives rise to (Chapter V) and the rights and and duties of spouses (Chapter VI), and Title VI concerns the law on divorce.

In this case the husband was sued for breach of Article 215 (Title V, Chapter VI), which provides that:

"Spouses mutually oblige themselves to a community of living."

The judge held that sexual relations are a part of a "community of living," and the Guardian quotes the judge as saying that:

"A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other."

Interestingly, from the size of the award, one can deduce that the going rate for sex in marriage is about 1.3 euros a day or about $1.80 Canadian at today's rate.

New Legislation this Fall?

2011-08-31T19:30:00.000-07:00

The CBC and Vancouver Sun report that Premier Clark has finally ended months of speculation, and a great deal of uncertainty following the HST referendum, and announced that she will not call an election this fall.

This is a bit of good news from my point of view, since the fact that we'll be having a fall legislative session rather than a fall election significantly increases the likelihood that we'll see the introduction of a bill proposing new family law legislation for the province.

The bill, if and when tabled in the provincial legislature, will be based on the white paper (PDF) released last summer, although the government has not indicated the extent to which the draft legislation will resemble the Family Law Act described in its discussion paper. For more information click on the "White Paper" label below.

Court of Appeal Issues New Practice Directives

2011-08-24T19:00:00.000-07:00

The Court of Appeal has announced (PDF) a new set of Practice Directives and Practice Notices which will come into effect and replace the old set on 19 September 2011. Practice Directives and Practice Notes are special rules issued by the Chief Justice to govern aspects of court procedure not covered by the formal Rules of Court.

Each level of court has it's own set of special rules like these. In the Supreme Court, "Practice Directions" are issued by that court's Chief Justice. The Practice Directions of the Provincial Court are issued by the Chief Judge.

Damned if You Do, Damned if You Don't

2011-08-22T21:58:00.000-07:00

The BBC and Los Angeles Times are reporting on a new study showing that both marriage and divorce increases the chance of weight gain. Not necessarily a tragedy, depending on your perspective on the issue and aesthetic preferences, but interesting nonetheless.

The 22-year-long study showed that people who marry get plumper faster than those who don't, and that the likelihood of weight gain increases again on divorce. According to the study, marriage increased the chance of weight gain in women by 33 to 48%, while divorcing women had a 22% chance of weight gain. For men, 28% were more likely to gain weight after marriage and 21% were more likely after divorce.

Provincial Court Reviewing Rules: Lawyers' Feedback Sought

2011-08-18T09:33:00.000-07:00

The Provincial Court has issued a Notice of Consultation (PDF) announcing that a committee has been struck to review the Provincial Court (Family) Rules to ensure the rules will work with any new provincial family law legislation which may be passed, such as that proposed by last summer's white paper (PDF).

In light of the opportunity offered by this review, the notice invites lawyers to provide their comments on how the current Provincial Court (Family) Rules could be improved generally. Comments are to be provided by email to Ms Erin Shaw at erinshaw@shaw.ca and must be received by 9 October 2011.

How to Hire a Family Law Lawyer

2011-08-09T19:05:00.000-07:00

All right, so you need a family law lawyer. That's too bad. Your question now is this: how do you go about finding and hiring one?

Personal Referrals

If you can, get a referral to one or two specific lawyers. People who can give you referrals include: family, friends and coworkers who have used a family law lawyer in the past (these people are also great for telling you who to avoid); accountants, business valuators and appraisers who have had professional dealings with family law lawyers; and, doctors, psychologists, therapists and counsellors who have been hired by family law lawyers.

These people have all had personal contact with a lawyer and can tell who they liked and who they didn't like, and the professionals will usually have worked with enough lawyers that they may be able to refer you to someone in particular based on your circumstances.

Referral Services

There are several services you can use to find a lawyer, such as directories which lawyers pay to be included, like Canada Law Books' Canadian Law List, directories where lawyers are included based on the opinion of their peers, like Best Lawyers, and open directories like the Canadian Bar Association's excellent Lawyer Referral Service, which will refer you to someone based on your location, language and legal problem.

(I have links to a bunch of local and international lawyer listing and search services in the Links & Resources section of my website.)

The Yellow Pages and the Internet

If all else fails, there's the Yellow Pages, and if the Yellow Pages fails, there's the internet.

The problem with the internet is that you don't know anything about the lawyer you're thinking of hiring except the things they say about themselves, and it's awfully easy to hire a designer to put together a slick website with Flash animations and impressive photography. Doing a Google search for best family lawyer vancouver, for example, is a terrible way to find a lawyer, if only because the rules of the Law Society are supposed to stop us from describing ourselves in ridiculously superlative language like that. (Frankly, the lawyers who really are the best have the professionalism and modesty not to describe themselves in such terms.) You'd probably get a more complete listing of lawyers with a simpler search like family law vancouver or family law nanaimo.

The problem with the Yellow Pages is that the display ads can be very expensive and you're not getting a full picture of your options... unless the picture you're looking for is of a parent walking hand in hand with a child or of a wedding ring lying on a torn family photo. And, like the internet, all you really know about the lawyers is what they say in their ads.

In fairness I may have been somewhat hard on the internet. Lawyer's websites will give you a sense of the firm's personality and any preferred areas of practice, such as children's issues, international and jurisdictional issues, appeal work or complex asset division problems. This is helpful, but it's not a substitute for a personal meeting the lawyer you're thinking of hiring.

(I have links to a bunch of lawyers' websites in the Links & Resources section of my site.)

Meet a Few Lawyers

Now that you've got at least a couple of names, start making appointments. You are making an important and often expensive decision, so meet a few people. You don't need to go with the first person you meet; you're entitled to shop around, and you should shop around.

Most lawyers charge for these initial meetings. Do not assume your meeting will be free or at a discounted rate unless the lawyer advertises that fact or his or her office tells you so. Lawyers are professionals and we bill for our time. If it's free legal advice that you're looking for, and there's nothing wrong with that, you can get it through organizations like UBC's LSLAP program, the Salvation Army's Pro Bono Program or Access Pro Bono.

It's not necessary for you to prepare anything for these meetings, but it can be helpful for you have a list of the important dates (your birthday, your partner's birthday, the children's birthdays, the date you began to live together, the date you married and the date of separation), an idea of what your assets and liabilities are (something approximate will do, you don't need to be precise), and summary of your income and your partner's income.

If litigation is underway, it's helpful to see the documents that started the case (in the Provincial Court, an Application to Obtain an Order and a Reply, and in the Supreme Court, a Notice of Family Claim, a Response to Family Claim and a Counterclaim) as well as copies of whatever orders have been made to date. If you want to hire the lawyer because your partner has made a settlement offer or prepared a separation agreement, bring copies of that too.

If litigation is going to be underway, bring a photograph of your partner for the lawyer's process server, and if you're married, bring a copy of your marriage certificate (the ugly brown thing from the Vital Statistics Agency, not the flowery document you received from your celebrant). If support will be an issue, consider bringing in copies of your three most recent income tax returns (PDF).

Choosing the Right Lawyer

I'm not an authority on this, but it seems to me that what a client ought to be looking to get out of an initial meeting is:

an explanation of the law applicable to your problem in language you're comfortable with;
an explanation of the options available to you;
the lawyer's opinion of the likely range of outcomes; and,
an idea of what it'll cost you to retain the lawyer.

On top of that, I expect a client would want to walk out of the meeting with:

confidence in the lawyer's knowledge of the law;
a sense that you will be able to work with the lawyer;
some assurance that the lawyer has the time to devote to your case; and,
a clear understanding of the terms of the lawyer's services.

Like I said before, you're entitled to shop around. You're entitled to ask the hard questions and get some honest answers, and if you have any hesitation about who you're thinking of hiring, hire someone else.

A Few Tips for Hiring a Lawyer

Ask how long the lawyer has been practicing law, and how long the lawyer has been practicing family law in particular. Ask about the lawyer's hourly rate and about the things you will be charged for.

There's nothing fundamentally wrong with hiring a junior lawyer. In general, a junior lawyer's lower hourly rate will compensate for any extra time spent researching the law or court processes, and the lawyer will usually have the ear of one or two senior lawyers who can be plied for advice as needed, especially junior lawyers at firms with multiple lawyers.

Unless your case is incredibly complex, with tough tax problems, jurisdictional problems, corporate problems or tort claims, you don't have to hire the most senior lawyer you can find or a partner of the firm. In general, our hourly rates vary with our seniority at the bar, and that usually means that more senior lawyers come with a correspondingly significant hourly rate.

Hiring a lawyer with a reputation as a shark or a bulldog isn't always a good idea, unless you like to spend lots of money in court.

If other people in a firm will be working on your file, ask to meet them as well. In particular, make a point of introducing yourself to the lawyer's main legal assistant, and be friendly.

Be prepared for the lawyer not to be able to take your case. This isn't a slight against you, it's just that most family law lawyers are terribly busy.

If the lawyer you meet can't take your case, get the lawyer's referral to two or three other lawyers. I only ever refer people to lawyers I have a personally high opinion of, and I always make referrals based on who I think would be a good fit for the client and the client's legal problem.

Stepparent Caught by Hole in Family Relations Act

2011-07-30T08:04:00.000-07:00

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

The Family Relations Act, British Columbia's primary law on domestic relations, is missing something very important: a triggering event for applications involving custody, guardianship, access, child support and spousal support. Nothing in the law restricts how soon an application on these issues can be made; in particular, nothing says that an application can't be brought while a couple are still together.

This isn't usually a problem, of course, since people are usually pretty annoyed when they decide to sue one another, and if they haven't split up by the time litigation commences, the commencement of litigation will usually do it. However, there can be odd consequences when other people, like grandparents or former spouses, step into the picture, since nothing says when they can and can't make applications of their own. (I made some comments about this during the consultation phase of the Family Relations Act Review, and there's a chance that the new legislation will correct this issue.) The legislative chickens came home to roost for one stepfather after an application by the child's biological father in a case recently before the Provincial Court and brought to my attention by my friend Agnes Huang of Schuman Daltrop Basran Robin.

In K.A.L. v J.P.R., the biological father brought an application for an order that the mother's new spouse - his child's stepfather - pay child support. So far this is fine, since stepparents are also liable to pay child support. The catch, though, is that the stepfather and the child's mother were together when the father brought his application!

The judge made a very thorough review of the Family Relations Act and the Child Support Guidelines for the following basic principles:

Each parent of a child is responsible to support a child. (FRA, s. 88(1))
The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
"Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))
Child support orders are to be made using the Child Support Guidelines tables. (FRA, s. 93(1))
Child support orders can be made in a different amount than the Guidelines tables, but only when there is an order or written agreement that provides a benefit to the child in some way and it would be unfair to apply the Guidelines tables. (FRA, s. 93(2))
Child support orders against stepparents can also be made in a different amount than the Guidelines tables as a result of "any other parent's legal duty to support the child." (CSG, s. 5)

And there you have it. Parents are liable to pay child support, stepparents are liable to pay child support for the benefit of a child, more than one "parent" can be required to pay child support at the same time, and nothing says when an application can and can't be made or restricts when a parent can bring the application. As a result:

"I, therefore, find that when one reads the legislated scheme for child support as a whole, and give the wording its 'grammatical and ordinary sense', a stepparent who satisfies the definition of 'parent' and lives with the parent of a child, is still obligated to make child support payments. This obligation occurs despite the fact that the parent of the child is also obligated to make child support payments."

"The [father] is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines."

Now, the judge didn't make an order against the stepfather at this point, and nor did the judge comment on who might be the recipient of the child support order. That will be the subject of a future application, and I expect that some interesting arguments will be advanced. I also wonder whether, some time before that application, the mother and the stepfather will enter into a written agreement under which the stepfather provide sufficient indirect benefits to the child that his child support obligation will be exhausted.

Law Society Approves Practice Guidelines for Family Law

2011-07-25T11:37:00.000-07:00

The Law Society of British Columbia has endorsed a package of best practice guidelines (PDF) recommended by its family law task force with much input from a working group established by the Canadian Bar Association British Columbia. The impetus for these guidelines stems from the Family Justice Reform Working Group's 2006 report, A New Justice System for Children and Families (PDF), which recommended that:

"... the Law Society of BC recognize the changing roles and duties of family law lawyers and develop a Code of Practice for Family Lawyers to give guidance in the balancing of a lawyer’s partisan role with the potential harm it may cause to other family members, especially children."

The guidelines are true guidelines, in the sense that they set out practice standards to be aspired toward rather than a compulsory code of conduct, and what's most interesting about them is that they could easily apply to all participants in the justice system, not just lawyers.

BEST PRACTICE GUIDELINES FOR
LAWYERS PRACTICING FAMILY LAW

1. Lawyers should conduct themselves in a manner that is constructive, respectful and seeks to minimize conflict and should encourage their clients to do likewise. (Lawyers are not obliged to assist persons who are being disrespectful or abusive.)

2. Lawyers should strive to remain objective at all times, and not to over-identify with their clients or be unduly influenced by the emotions of the moment.

3. Lawyers should avoid using inflammatory language in spoken or written communications, and should encourage their clients to do likewise.

4. Lawyers should caution their clients about the limited relevance of allegations or evidence of conduct.

5. Lawyers should avoid actions that have the sole or predominant purpose of hindering, delaying or bullying an opposing party, and should encourage their clients to do likewise.

6. Lawyers cannot participate in, and should caution their clients against, any actions that are dishonest, misleading or undertaken for an improper purpose.

7. Lawyers should keep their clients advised of, and encourage their clients to consider, at all stages of the dispute:

a. the risks and costs of any proposed actions or communications;

b. both short and long term consequences;

c. the consequences for any children involved; and

d. the importance of court orders or agreements.

8. Lawyers should advise their clients that their clients are in a position of trust in relation to their children, and that

a. it is important for the client to put the children’s interests before their own; and

b. failing to do so may have a significant impact on both the children’s wellbeing and the client’s case.

9. Lawyers should advise their clients of and encourage them to consider, at all stages of the dispute, all available and suitable resources for resolving the dispute, in or out of court.

These principles all strike me as reasonable. They reflect how I practice family law and how I would like all lawyers to practice family law.

Judge Forced to Name Child

2011-07-15T08:40:00.001-07:00

The Daily Mail reports that a judge of the Family Court of Australia was put in the unenviable position of having to pick the name of a two year old child whose birth had yet to be registered as a result of her parents' squabble. Apparently, the child's parents split up before the child was born and couldn't agree on what name she should have. The father insisted on calling her by one name - and did - while the mother insisted on calling her by another - and did.

Having been forced to decide the matter, the court acted in the manner of all commonwealth family law courts and resolved the issue through a rigorous application common sense... after the father refused a proposal to simply hyphenate the two names. The court picked the name chosen by the mother as that was the name by which most people knew the child and because the root of the father's opposition to the name lay in his "determination to control the mother and her parenting" rather than some rational objection.

Prof. Thompson Digests BC Law on Mobility

2011-07-09T07:03:00.000-07:00

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

On 8 July 2011, Professor Rollie Thompson, one of Canada's leading academics in family law and a co-author of the Spousal Support Advisory Guidelines (PDF), presented a summary of the recent British Columbia case law on mobility issues at a conference organized by the BC Continuing Legal Education Society.

Mobility issues are among the most difficult problems family law lawyers are called upon to address, and come up when one parent wants to take the children and move away from the other parent. Small moves really aren't the issue; what I'm talking about are moves out of town which will have a serious impact on the non-moving parent's ability to spend time with the children. The problem with moves like this is that while the moving parent usually wants to move for important reasons (to take a new job, to go to a new school, to be with family, or to live with a new partner), the move will have an inevitable impact on the non-moving parent's relationship with his or her children, and it can be extremely difficult to balance the moving parent's legitimate interest in moving with the non-moving parent's equally legitimate interest in maintaining a relationship with the children.

A 1996 case of the Supreme Court of Canada, Gordon v. Goertz, was supposed to provide guidance about when moves should be allowed and when they shouldn't, and the case set out a helpful list of factors supporting moves and factors opposing them. However, in the years which followed some cases interpreted the Gordon factors one way and some interpreted them another way, with the result that the case law has become as useless hodgepodge and Gordon can be made to say anything you want it to say. In fact the only useful thing you can get from the case law on mobility is the fact that in a narrow majority of cases the parent with primary care of the children gets to move.

This is tremendously difficult for family law lawyers, as it means that we can't give our clients meaningful predictions about whether a move will be allowed or not. All we can offer is a statistical observation which says nothing about what will happen in their particular circumstances.

This is where Professor Thompson's presentation comes into things. The last time I heard an analysis of post-Gordon cases was in 2003 or 2005, and the conclusion the speaker reached was that in something approaching 60% of Canadian mobility cases, the parent with primary care was able to move. Professor Thompson took a look at British Columbia mobility cases over the last few years and provided a number of observations about trends in this province:

The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%, but moves are permitted about 57% of the time in BC.
Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
Moves were refused in 8 of 9 cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
Moves were allowed three-quarters of the time when the children were aged 0 to 5, declining to about half the time for children aged 6 and older.
Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
The rule from Gordon that the reasons for the move should not be canvassed is almost universally ignored, and applications to move will not succeed when the application is made in bad faith or for trivial reasons.

Bearing in mind that statistics can only give you information about general trends and not about what the decision will be in a particular case, it seems that applications to move will most likely succeed when:

the child is of pre-school age;
the parent wishing to move has clearly been primarily responsible for the care of the children;
the application is made after trial; and,
the application is made for a good reason.

On the other hand, applications to move will most likely fail when:

the parents share the children's time equally or near-equally; and,
the application is made in bad faith or for a bad reason.

You can get a bit more information about mobility issues from my website.

Court Rules and Court Forms Online

2011-06-25T07:54:00.000-07:00

Here's a handy table of links to the rules and forms for British Columbia's courts, including the Supreme Court form templates available from my website. Bookmark this link to return to this page as a quick reference.

Provincial Court of British Columbia

Legislation

Rules

Forms

Court Forms from the online rules
fillable Court Forms from the Attorney General's website (PDF format)

Examples of what the more common court forms should look like when filled out properly are also available on my website; see my index of Sample Documents.

Supreme Court of British Columbia

Legislation

Rules

Forms

Court Forms from the online rules
fillable Court Forms from the Attorney General's website (PDF format)

Court Form templates from my website (Word format)
templates for the do-it-yourself divorce process from my website (Word format)

Examples of what the court forms should look like when filled out properly are also available on my website; see my index of Sample Documents.

Court of Appeal for British Columbia

Legislation

Rules

Forms

Court Forms from the online rules
Court Forms from the court's website (Word and PDF format)

Cut-and-Paste Guardianship Definitions

2011-06-18T06:09:00.000-07:00

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which will affect the law on guardianship. See my post "Family Law Act Introduced!" for more information.

In family law, guardianship is the right to participate in parenting a child. A guardian usually has the right to get information from, and give instructions to, a child's teachers, doctors, counsellors, coaches, dentists and so forth. A guardian usually has the right to make important life choices for a child and determine which school the child will go to, the course of the child's medical treatment, the child's religious instruction, the child's discipline, the nature of the child's diet and so on. Of course when parents have separated and they are both guardians, which, frankly, is the result more often than not, they must work together to handle these issues, and that can be difficult. Parents with joint guardianship must find a way of working together to exchange information about their children and make decisions about major events and issues in their children's lives.

Although there are a number of different ways to manage conflict between separated parents about guardianship issues, the easiest is usually to define the rights and obligations involved in joint guardianship so that each parent knows what they must and mustn't do. There are three standard models of guardianship, the Joyce model, the Charleton model and the Horn model, and I've reproduced them in this post for readers to cut-and-paste and use as you wish.

The Joyce Model

Mr. Justice Joyce created this model to provide guidance on joint guardianship where only one parent had custody, however his model is commonly used whenever parents have joint guardianship, including when parents have joint guardianship and no determination is made about custody.

The parents will have joint guardianship of the child, defined on the following terms:

1. the parents will be the joint guardians of the estate of the child;

2. in the event of the death of either parent, the surviving parent will be the sole guardian of the person of the child;

3. the parent who has the primary responsibility for the day to day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child;

4. the parent who has primary responsibility for the day to day care of the child will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the child;

5. the parent who does not have the primary care of the child will have the obligation to discuss the foregoing issues with the other parent and both parents will have the obligation to try to reach agreement on those major decisions;

6. in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the parent with primary responsibility for the day to day care of the child will have the right to make such decision and the other parent will have the right, under s. 32 of the Family Relations Act, to seek a review of any decision which he or she considers contrary to the child's best interests; and,

7. each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

Common variations of this model include: ditching the language about who has "primary care" and who doesn't; assigning one or more subjects of exclusive decision-making authority to each parent; and, revising paragraph 6 to require the parents to consult a counsellor, therapist, parenting coordinator or mediator if they cannot agree on a decision.

The Charleton Model

This model was developed by Mr. Justice Garner in a Supreme Court judgment called Charleton v. Charleton rendered in 1980.

The parents shall have joint guardianship of the child, and joint guardianship will include the following rights and powers:

1. the parents shall each have a full and active role in providing a sound moral, social, economic and educational environment for the child;

2. the parents shall consult with one another in planning the religious upbringing, educational programs, athletic and recreational activities, health care (excluding emergency health care) as well as significant changes in the social environment of the child;

3. the power and authority granted hereby shall not be exercised by either of the parents so as to frustrate or unduly affect the life of the other; and,

4. the parents shall each exert their best efforts to cooperate in future plans consistent with the best interests of the child.

The Horn Model

This model was developed by Master Horn and differs from the two previous models in that it mostly discusses the sharing of information about a child.

The parents shall have joint guardianship of the child with guardianship including the following rights:

1. to be informed of the child's medical and dental practitioners;

2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;

3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;

4. to consult with the children's alternative caregivers and teachers;

5. to be informed of events at the child's schools or daycare so that the parent without the primary care of the child may attend;

6. to be informed of parent/teacher nights so that the parent without the primary care of the child may attend;

7. to be consulted with respect to any significant health issues relating to the child; and,

8. to be consulted with respect to any significant change in the child's social environment.

This model can also be edited to remove the language about who has "primary care" and who doesn't, and to add some detail about what the right "to be consulted" means.

Court of Appeal Releases Decision on the Cancellation of Arrears of Child Support and Special Expenses

2011-06-11T18:29:00.000-07:00

The Court of Appeal has just released its decision in Semancik v. Saunders, a helpful case which reviews and summarizes the law on many common issues relating to applications to cancel arrears of child support and the payment of children's special expenses. Here are the highlights of the court's review of the law:

Under s. 96 of the Family Relations Act, the court may only reduce arrears of child support if it would be "grossly unfair" not to do so.
A 1999 decision of the Supreme Court called Earle v. Earle held that this requires an applicant to prove (1) a significant and long lasting change in circumstances, and (2) that it would be grossly unfair not to cancel the arrears. Arrears will usually only be cancelled if the applicant proves that he or she is unable to pay “now and in the future.”
The principles given by the Supreme Court of Canada in D.B.S. v. S.R.G. on orders involving retroactive child support under the Divorce Act also apply to retroactive child support orders under the provincial Family Relations Act.
The D.B.S. principles also apply to orders involving retroactive payment for children's special expenses.
There is, however, an important distinction between orders for child support and orders for special expenses. "In the case of child support, the payor parent’s income is determinative. That parent knows what his or her income is and can determine the amount of the child support obligation from the [Child Support] Guidelines. In the case of [special] expenses, it is the recipient parent who knows the details of the expenses. If that parent does not communicate that information to the payor parent, the payor parent cannot fulfill his or her legal obligation to contribute."
Adult children should be required to make a reasonable contribution to the costs of their post-secondary education when those costs are claimed as a special expense. A "reasonable contribution" does not mean that an adult child should be expected to cover the cost entirely or to contribute all of his or her income to these costs.

New Amendments to the New Rules

2011-06-03T08:58:00.000-07:00

An Order in Council (PDF) came into effect on 26 May 2011 amending the published version of the Supreme Court Family Rules and the forms prescribed by the rules. The rules and forms, as amended, will be in force on 1 July 2011. The changes to the rules are mostly fairly minor:

Rule 7-1: The JCC rule is amended to provide that the tape recording of a JCC may not be accessed except by court order.
Rule 14-5: The rule which requires a trial to be removed from the trial list if Trial Certificates are not filed is amended to give the court some discretion in the matter.
Rule 17-1: The rule on petition proceedings is amended to tie the deadline for replying to a Petition to the place the petition respondent was served rather than the place where the petition respondent resides, and to tidy up the language about petition respondents' right to seek directions on adjourned hearings.
Rule 18-3: The rule about appeals brought from the provincial court is amended to tie the deadline for replying to a Notice of Appeal to the place the respondent was served rather than the place where the respondent resides.
Rule 20-5: The rule on applications for indigency status is amended to remove the option of filing proof of receipt of welfare benefits and require applicants to file an affidavit in Form F86.

The changes to the forms are similarly minor, but there are a lot more of them. The following forms have been amended:

F3 - Notice of Family Claim (Schedule 1)
F5 - Counterclaim (Schedule 1)
F15 - Affidavit of Personal Service
F36 - Certificate of Pleadings
F37 - Child Support Affidavit for desk order divorce
F38 - Affidavit for desk order divorce
F44 - Notice of Trial
F45 - Trial Brief
F54 - Restraining Order
F58 - Writ of Sequestration
F59 - Writ of Possession
F60 - Writ of Delivery
F61 - Writ of Delivery or Assessed Value
F73 - Petition
F79 and F80 - Notice of Appeal
F86 - Affidavit in Support of Indigent Application
F95 - Fax Cover Sheet
F100 - Certificate of Mediation

For more information on the Supreme Court Family Rules, see the New Rules 101 chapter of my website or click on the "court rules" label below.

Update: 18 June 2011

I have now updated the court form templates available on my website to reflect the changes required by the new Order in Council.

Templates for the most commonly used court forms in family law matters are available in the chapter Resources & Links > The Courts, in the discussion of the Supreme Court.

Templates for the do-it-yourself divorce process are available in the chapter Marriage & Divorce > Divorce.

These templates are published in Word format.

Introduction of Family Law Reform Bill to be Delayed

2011-05-31T19:04:00.001-07:00

Attorney General Barry Penner made a statement yesterday that a bill proposing new family law legislation will not be introduced in this legislative session. The fall legislative session, the next opportunity to introduce the bill, will commence sometime in September or October.

The bill, if and when it is tabled in the provincial legislature, will be based on the white paper (PDF) released last summer, although the government has not indicated the extent to which the draft legislation will resemble the Family Law Act described in its discussion paper. For more information click on the "White Paper" label below.

Malta Votes to Legalize Divorce

2011-05-29T07:17:00.001-07:00

The Times of Malta has reported the results of a national referendum on the issue of divorce. With 72% voter turn out in this staunchly Catholic country, the pro-divorce Divorce Movement (slogan: "Give Love a Second Chance") has prevailed over the Nationalist Party government (slogan: "Jesus Yes, Divorce No") with 52% of the popular vote. Prime Minister Gonzi has said that the results would be respected and government will introduce legislation to enable divorce.

Malta is the last European nation to legalize divorce. Yay, Malta! You can find a bit of information on the origins of the Commonwealth laws on divorce in my post "Polygamy: The Legal Background."

DivorceMate Provides Free Advisory Guidelines Calculator

2011-05-25T17:29:00.000-07:00

In April 2011, DivorceMate, one of Canada's major publishers of spousal support and child support software, published a new website, www.mysupportcalculator.ca. The website advertises lawyers and law firms, performs child support calculations under the Child Support Guidelines and, most importantly, performs spousal support calculations using the Spousal Support Advisory Guidelines formulas.

Although the spousal support calculators available at mysupportcalculator.ca do not generate results which match those produced by DivorceMate's expensive software for professionals and do not account for all of the factors which can impact on the Advisory Guidelines formula results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth), the results will be fine for most people most of the time.

(One point about the Advisory Guidelines deserves particular mention. The spousal support formulas will almost always produce some numbers for spousal support. However, the mere fact that the formulas — and the www.mysupportcalculator.ca calculators — generate numbers for amount and duration does not mean that someone is entitled to receive spousal support. Entitlement must be established first. Once entitlement is established, then the results have significance.)

DivorceMate deserves much praise for making these calculators publicly available. The new website goes a long way toward addressing the need for free, public calculators which can handle the complex math required by the Advisory Guidelines.

For an overview of the Advisory Guidelines formulas and a complete review of the data they require, see my paper "Obtaining Reliable and Repeatable SSAG Calculations" (PDF) from the website of the Department of Justice.

Update: 12 July 2011

Having updated my DivorceMate software, I am pleased to report that the results of the free www.mysupportcalculator.ca calculator are an almost exact match to the results generated by the professional software when the data are limited to match the www.mysupportcalculator.ca inputs. Good job, DivorceMate!

Protecting Property

2011-05-23T14:31:00.000-07:00

The property must be located in BC.
The parties must not be divorced at the time of the application.
The entry only applies to property "occupied by the husband and wife as their residence," and which is owned by one or both spouses.
The application must be made within one year of moving out of the property.

The cool things about entries under the Land (Spouse Protection) Act are that they can be obtained without commencing a law suit and the other spouse is not normally notified about the entry. The bad news is that the act ceases to apply once a couple are divorced, which means that the entry, although still on title, will be ineffective to prevent the transfer of the property.

Register a Certificate of Pending Litigation

Married spouses and unmarried people can apply to register a certificate of pending litigation under the Land Title Act against the title of any real property to which they claim an interest. Once the CPL is registered, the owner will be unable to transfer title of the property or obtain a new mortgage until the CPL is canceled. Here's the fine print:

The property must be located in BC.
Litigation must have commenced in the Supreme Court, and the litigation must include a claim about the property proposed to be subject to the CPL.
The person applying for the CPL must be claiming an interest in the property in the litigation.

CPLs are registered with the Land Title and Survey Authority, after being stamped by the court where the litigation was commenced to confirm that the litigation includes a claim about the property the CPL is going to be registered against.

Apply for a s. 67 Restraining Order

A married spouse can apply for an order under s. 67 of the Family Relations Act to restrain the other spouse from selling the family assets or using them as collateral. A restraining order doesn't create an automatic bar to selling the family assets or using them to obtain a loan the way a CPL automatically prevents the transfer of land. Instead, if the person subject to the order breaches the order, he or she can be punished for contempt of court. Here's the fine print:

The restraining order covers real property and personal property located in BC, as well as personal property located outside the province.
Litigation must have commenced in the Supreme Court.
You must apply for the order in chambers.

The nice thing about s. 67 orders is that they are all but mandatory on the application of a party. If you need this order, you just have to apply for it and the court will give it to you.

Apply for an Injunction

Married spouses and unmarried people can apply for an injunction under Rule 12-4 of the Supreme Court Family Rules to stop the other party from dealing with assets, and the injunction can theoretically be as narrow or as broad as is required to accomplish the task. Again, the fine print:

The injunction can cover real property and personal property located in BC, as well as personal property located outside the province.
Litigation must have commenced in the Supreme Court.
You must apply for the order in chambers and the court may not make the order you want.
You must promise to make good any harm the other party suffers as a result of the injunction.

Married spouses and unmarried people can also apply for the same relief under s. 39 of the Law and Equity Act.

Apply for an Order for the Detention and Preservation of Property

Married spouses and unmarried people can apply for order for the detention and preservation of assets under Rule 12-1 of the Supreme Court Family Rules where there is a real risk that the other party will sell, damage or conceal property. The purpose of this order is to protect the assets from loss or a reduction in value, and can include a term requiring a party to deliver a specific thing to the other party. Here's the fine print:

The order can cover real property and personal property located in BC.
Litigation must have commenced in the Supreme Court.
You must apply for the order in chambers and the court may not make the order you want.

Married spouses and unmarried people can also apply for essentially the same relief under s. 39 of the Law and Equity Act.

Japan Finally to Sign Hague Convention

2011-05-19T22:48:00.000-07:00

The BBC has reported that, at long last, Japan is going to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction later this year.

Japan's move is significant, not only because it is the last of the Group of Seven industrialized nations to sign the convention, but because Japanese family law favours single-parent families after separation and thus envisions a distribution of parental rights at odds with the convention's presumption of joint parental significance.

Supreme Court Releases Decision on Retroactive Spousal Support

2011-05-16T18:49:00.000-07:00

The Supreme Court of British Columbia has just released an important decision on retroactive spousal support, among other issues, in the case of Crowe v. Crowe. The law in this area has been changing in the last few years, roughly tracking the changes in the law on retroactive child support with a three or four year delay, and this case offers an excellent summary of the current state of things.

In this case, the court examined the recent case law, including two important recent cases of the Supreme Court of Canada, D.B.S. v. S.R.G. and Kerr v. Baranow, in the context of a review of spousal support and reached the following conclusions:

Whether to order retroactive spousal support is a discretionary decision resting on the particular circumstances of the particular parties before the court.
The factors to be considered on an application for retroactive spousal support are similar to the factors considered on an application for retroactive child support.
These factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.
However, because spousal support has a different legal basis than child support and there is no presumptive entitlement to spousal support, concerns about notice, delay and misconduct will carry more weight.
The Spousal Support Advisory Guidelines may be used to determine spousal support on a review application.

CRA to Change Sharing of Child Benefits

2011-05-03T10:21:00.000-07:00

Effective 1 July 2011, the Canada Revenue Agency will be changing its method for allocating the Canada Child Tax Benefit between separated parents who share their children's time equally or near-equally.

At present, when the CRA learns that separated parents have shared custody it rotates the child-related benefits and credits between the parties, such as the CCTB, the National Child Benefit Supplement, and the Universal Child Care Benefit, on a six-month on/six-month off basis. That's fair where both parents have about the same income, however, since the CCTB and the NCBS are indexed to income, it can be unfair where one parent would parent would get a lot of money out of the benefits and the other would get nothing.

Under the new rule, when when parents have shared custody the CRA will pay to each parent one-half of the benefits that parent would be entitled to receive if that parent were the only person entitled to the benefits. This will end the six month rotation of eligibility and will index the amount paid to only the income of the recipient.

The new rules will apply to:

the CCTB and, I assume, the NCBS
the UCCB
the child-portion of the quarterly HST credit
the BC Family Bonus

For more information, see the Child and Family Benefits page of the CRA's website, or call 800-387-1193.

Supreme Court Releases Decision on Foreign Divorces, Foreign Agreements and Effect of Foreign Law

2011-04-29T11:31:00.001-07:00

The Supreme Court of British Columbia has just released its judgment in Sangi v. Sangi, a complex but important case which surveys the rules about when the courts of this province will recognize foreign divorces, how the court should evaluate the fairness of separation agreements negotiated under the laws of another country, and how the court should interpret and/or apply the laws of another country, along with a host of other matters such as:

determining the credibility of a witness
the drawing of adverse inferences following a party's failure present a witness to give evidence on an issue
defending against a foreign judgment on the basis of fraud occurring in the foreign jurisdiction
determining the authenticity of the records of a foreign court
measuring whether a foreign agreement is unconscionable or unfair against domestic values and standards

This decision is very well written and provides an eloquent statement of the law in this area, and I would do it a disservice if I tried to summarize it further. Suffice it to say that if you have a legal problem in these areas, this decision is well worth your time to read.

Legislature Resumes Sitting

2011-04-27T21:59:00.000-07:00

After a modest delay (since June 2010, I believe) the provincial Legislative Assembly has resumed sitting, as the 3rd Session of the 39th Parliament.

Judging by the media coverage, like this article from the Victoria Times Colonist, discussion about the HST referendum will occupy a significant amount of the legislature's time. There's something else to look out for, however... the bill which introduces a new Family Law Act, the legislation suggested in last summer's white paper. If the Family Relations Act is going to be replaced, it's going to be replaced in this legislative session before matters relating to the next election begin to preoccupy government and the opposition.

Check out the first reading section of the legislature's webpage for the proceedings of the current legislative session to keep yourself up to date, at www.leg.bc.ca/39th3rd/1st_read/index.htm. You're looking for a government bill called "An Act to Amend the Law Relating to Domestic Relations" or "An Act to Amend the Family Relations Act," or something else along those lines.

For more information about the white paper, click on the "White Paper" label below.

Acroynms and Abbreviations Explained

2011-04-20T19:23:00.000-07:00

Here's a brief guide to some common legal acronyms and abbreviations used in family law matters.

A.C.J.: short for "Associate Chief Justice" in the superior courts or "Associate Chief Judge" in the Provincial Court

A.G.: the Attorney General

A.N.: Administrative Notice, a procedural advisory to be read with the Supreme Court Family Rules

B.C.C.A.: the British Columbia Court of Appeal

B.C.P.C.: the British Columbia Provincial Court

B.C.S.C.: the British Columbia Supreme Court

c.: short for "chapter"

C.F.C.S.A.: the Child, Family and Community Services Act

C.J.: short for "Chief Justice" in the superior courts or "Chief Judge" in the Provincial Court

C.R.A.: the Canada Revenue Agency

C.S.G.: the Child Support Guidelines, also referred to as "the Guidelines"

D.A.: the Divorce Act

de minimus: short for "de minimus non curat lex," a Latin phrase meaning that the law does not concern itself with trifles

df.: short for "defendant," or "respondent" under the new rules; also represented as Δ

et al.: short for "et alii" (masculine) or "et alia" (feminine), a Latin phrase meaning "and others"

F.M.E.P.: the Family Maintenance Enforcement Program, the provincial program that enforces child support and spousal support obligations

F.M.P.: the Family Maintenance Program, the provincial program that obtains child support and spousal support orders on behalf of persons receiving social assistance

F.P.D.: Family Practice Direction, a procedural advisory to be read with the Supreme Court Family Rules

F.R.A.: the Family Relations Act

Hon.: short for "Honourable"

J.: short for "Justice," JJ. is the plural form and means "Justices"

L.O.L.: Lawyer on Ledge

M.A.G.: the Ministry of the Attorney General

M.C.F.D.: the Ministry for Children and Family Development

O.I.C.: Order in Council

p.: short for "page," pp. is the plural form and means "pages"

para.: short for "paragraph," paras. is the plural form and means "paragraphs;" also represented as ¶ and ¶¶

P.C.F.R.: the Provincial Court (Family) Rules

P.D.: civil Practice Direction, a procedural advisory sometimes to be read with the Supreme Court Family Rules

pl.: short for "plaintiff," or "claimant" under the new rules; also represented as π

Q.C.: Queen's Counsel

reg.: short for "regulation"

R.S.B.C.: the Revised Statutes of British Columbia, refers to a consolidated collection of the current provincial laws

R.S.C.: the Revised Statutes of Canada, refers to a consolidated collection of the current federal laws

s.: short for "section," ss. is the plural form and means "sections" (s-s. means "subsection"); also represented as § and §§

S.B.C.: Statute of British Columbia

S.C.: Statute of Canada

S.C.C.: the Supreme Court of Canada

S.C.F.R.: the Supreme Court Family Rules

S.S.A.G.: the Spousal Support Advisory Guidelines, also referred to as "the Advisory Guidelines"

Supp.: short for "supplement"

v.: short for "versus"

Here's how you read references to legislation:

Family Relations Act, R.S.B.C. 1996, c. 128, s. 35(2)

The law is the Family Relations Act, which is chapter 128 of the 1996 consolidated Revised Statutes of British Columbia, and the part of the law specifically referred to is subsection 2 of section 35. Here's another example:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1, 16 and 17

The law is the Divorce Act, which is found in the second supplement to chapter 3 of the 1985 consolidated Revised Statutes of Canada, and the sections referred to are section 15.1, section 16 and section 17. This next example is too recent to belong to a Revised Statutes consolidation:

Civil Marriage Act, S.C. 2005, c. 33

The law is the Civil Marriage Act, which is chapter 33 of the federal laws passed in 2005.

Here's how you read references to newer court decisions:

Smith v. Jones, 2011 BCSC 345

This case is the case of Smith, the claimant, versus Jones, the respondent, and is the 345th decision of the BC Supreme Court released in 2011.

Plain-language definitions for several hundred common legal words and phrases are available in my website. If there any acronyms and abbreviations you'd like me to explain, please say so in a comment to this post.

Law Week Wraps Up Saturday With Free Legal Advice

2011-04-15T18:08:00.000-07:00

Law Week, the Canadian Bar Association's annual celebration of the signing of the Canadian Charter of Rights and Freedoms, wraps up on Saturday 16 April 2011 with Dial-a-Lawyer Day. Call between 10am and 2pm to speak to a lawyer for free legal advice at the following numbers:

Family Law: 1-855-326-4529
Employment and Labour Law: 1-855-367-5529
General Law (English language): 604-687-3221 or 1-800-663-1919
General Law (Chinese language): 604-687-3404 or 1-888-687-3404

I'll be one of the lawyers on the line; feel free to call and say hi.

Court of Appeal Releases Decision on Capacity

2011-04-09T19:20:00.000-07:00

On Friday, the Court of Appeal released its decision in Wolfman-Stotland v. Stotland, a case about the mental capacity required to obtain a declaration of irreconcilability. There have been a number of cases like this over the last few years, and I expect that as our population ages, cases on other elder law issues will become increasingly commonplace.

In Wolfman-Stotland, the parties were both in their 90s and each had lived in a separate assisted living facility for several years before the wife commenced proceedings in June 2010. In October 2010, counsel for the wife applied for a declaration, under s. 57 of the Family Relations Act, that the parties had no reasonable prospect of reconciling with one another. Although this declaration is really about protecting property and has nothing to do with separation or qualifying for a divorce, it nevertheless requires to the court to make a conclusion about the wife's intention to end the marriage and therefore about her capacity to form such an intention. The court summarized the issue with this quote from Mental Disability and the Law in Canada by Gerald Robertson:

"Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention."

After discussing the evidence on this point, particular that of a mental health expert, the court cited with approval the discussion of capacity set out in a 1997 case out of Ontario called Calvert v. Calvert:

"Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.

"The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend ...

"There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will ... While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce."

It has always been curious in my view that the mental capacity to enter a marriage should be so low compared to the mental capacity required to leave a marriage; doubtless this is a result of the social and religious stigmata formerly associated with divorce. In any event, on the strength of the expert's conclusion that the wife had the mental capacity to instruct counsel on the financial aspects of the parties' divorce, the court of appeal concluded that the wife also had the capacity to "to form the intention to live separate and apart" and therefore also the capacity to apply for the s. 57 declaration.

Another good case on a related issue is the Supreme Court's 2005 decision in M.K.O. v. M.E.C., which involved the capacity of a party to apply for a divorce where the divorce action is commenced by the party's litigation guardian. This decision is very well written and worth a read. More information about s. 57 declarations can be found in an older post, "The Ins and Outs of Separation."

Jurisdictional Disputes in the Supreme Court

2011-04-06T05:30:00.001-07:00

I was reminded yesterday of the interesting provisions the new Supreme Court Family Rules make for challenging the court's jurisdiction over a claim or a person, or the adequacy of service. Here's a summary.

Under Rule 18-2(1), if you've been served with a Notice of Family Claim or Counterclaim and believe that the British Columbia courts don't have jurisdiction or if you believe you were served improperly, you can file and serve a Jurisdictional Response in Form F78.

A Jurisdictional Response lets everyone know that you have a fundamental problem with the claim that has been brought against you, and allows you take certain steps in the proceeding without being considered to have attorned to the jurisdiction of the court. (To "attorn" means to submit to the court's authority, and once someone is found to have "attorned to the court" they can sometimes be prevented from subsequently disputing the court's jurisdiction. People commonly attorn to the court's jurisdiction by filing a response or claim in a proceeding.) Under Rule 18-2(1) and (3), once you have filed your Jurisdictional Response you can:

apply to have the claim struck or stayed on the basis that the facts alleged in the claim, even if true, would not give the court jurisdiction in the case;
apply to have the claim struck or stayed on the basis that the court doesn't have jurisdiction over you; or,
allege in your response that the court doesn't have jurisdiction.

If you are the respondent, you must still file and serve your Response to Family Claim under Rule 4-3(1) even though you've filed a Jurisdictional Response. Under Rule 18-2(5), as long as you bring an application to strike or stay the claim within 30 days of filing your Jurisdictional Response, you can participate in the proceedings by filing a response (and even by making or defending an interim application) without being considered to have attorned to the court's jurisdiction.

This is a complicated subject and I admit that my explanation is a bit technical. Please feel free to post any questions as comments to this post, bearing in mind that I can't give legal advice about your specific circumstances.

Justice Education Society Launches Online Parenting After Separation Program

2011-03-22T20:48:00.000-07:00

On 21 March 2011 the Justice Education Society, formerly the Law Courts Education Society, launched an online version of the Parenting After Separation program, available through the Families Change website. I've taken a look at the online PAS program and it's a pretty impressive effort. Even more impressively, JES says that they're expecting to have a similar online program available in Punjabi and Cantonese or Mandarin by the end of April.

The PAS program is a mandatory part of the court process in the Abbotsford, Campbell River, Chilliwack, Courtney, Kamloops, Kelowna, Nanaimo, New Westminster, North Vancouver, Penticton, Port Coquitlam, Prince George, Richmond, Surrey, Vancouver, Vernon and Victoria registries of the provincial court. It is intended to teach parents about how children experience separation, how parents can protect children from the conflict, and how parents can make decisions which put their children's interests first. I recommend the program to all parents who are thinking of separating, not just those involved in litigation in the provincial court.

The Attorney General's website has a list of locations (PDF) where the PAS program is offered live, a brochure (PDF) for the program, and the program handbook in English, French, Chinese and Punjabi (PDF).

Update: 25 March 2011

And the news gets better yet. JES is looking for people to evaluate their online Parenting After Separation program. The first fifty people will be paid $50 for completing the online program, including the final exam, and filling out an evaluation form.

This is how it works:

visit www.familieschange.ca starting today,
click on the icon for the online Parenting After Separation program,
click the REGISTER button and provide your name and telephone number,
complete the course and take the final exam,
fill out the online evaluation form after the final exam, and
answer a few follow questions by telephone and provide a mailing address for your cheque.

Please address any questions to Kevin Smith at kevin.smith@justiceeducation.ca.

Becoming Common-Law

2011-03-13T10:25:00.001-07:00

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.

For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.

Public Commission on Legal Aid Releases Report

2011-03-08T16:34:00.000-08:00

The Public Commission on Legal Aid in British Columbia, a joint project of the Law Society of British Columbia and the Canadian Bar Association British Columbia, the Law Foundation and other groups, has released its Final Report (PDF) today.

In this report, the Commissioner, prominent Vancouver lawyer Len Doust Q.C., summarizes the history of legal aid in this province, from its establishment in the early 1970s to the critical budget cuts which began under Gordon Campbell's stewardship in 2002, the evidence gathered since the commission was established in June 2010, and finds that:

"Based on the evidence presented to me, I cannot come to any conclusion other than the services provided in British Columbia today are too little, their longevity or consistency too uncertain. This result is the consequence of the cutbacks and lack of sufficient and consistent financing, even though LSS has done its very best, and in my view has done everything possible, to accommodate the needs within their limited budgetary restrictions."

Mr. Doust reaches a number of specific conclusions about the current state of legal aid. To quote from the report:

The legal aid system is failing needy individuals and families, the justice system, and our communities.
Legal information is not an adequate substitute for legal assistance and representation.
Timing of accessing legal aid is key.
There is a broad consensus concerning the need for innovative, client-focused legal aid services.
Steps must be taken to meet legal aid needs in rural communities.
More people should be eligible for legal aid.
Legal aid should be fully funded as an essential public service.

The Commission's nine recommendations are these:

"The Legal Services Society Act," the legislation which establishes the Legal Services Society, the organization which provides legal aid in BC, "should be amended to include a statement clearly recognizing legal aid as an essential public service."
"A new approach to defining core public legal aid services and priorities should be developed which merges the traditional legal categories approach (e.g., criminal law, family law, and poverty law) with an approach based on the fundamental interests of the most disadvantaged clients, where the need is most pressing and the benefit is likely to be the greatest."
"Financial eligibility criteria should be modified so that more needy individuals qualify for legal aid."
Regional legal aid centres should be established and "legal aid service delivery should be modeled on evidence-based best practices, which take into account the needs of economically disadvantaged clients for lasting outcomes and the geographic and cultural barriers they face in accessing public services."
"Justice system stakeholders ... should continue to take steps to expand public engagement and political dialogue on the urgent need to renew the legal aid system in British Columbia."
"The provincial and federal governments must increase funding for legal aid and provide this funding through a stable, multi-year granting process."
"The legal aid system should be more proactive, dynamic and strategic in its approach."
"Mechanisms to facilitate collaboration between public legal aid providers and private service providers ... should be established on both a province-wide and regional basis."
"Steps should be taken to develop, support, and recognize community advocates, legal advocates, paralegals, and lawyers who provide both public and private legal aid services in order to ensure the quality of these services."

It will come as no surprise to readers of this blog that I support all of Mr. Doust's recommendations unequivocally; it will also come as no surprise that Attorney General Barry Penner takes a different view, as the Globe and Mail has recently reported. The problem likely comes down to the money the federal and provincial governments are prepared to devote to the justice system versus its major funding competitors, health care, education and corporate tax cuts.

The Revenge of Facebook, Part III

2011-03-05T08:01:00.000-08:00

CBC has reported on a survey of American divorce lawyers which found that Facebook ("Facebook helps you connect and share with the people in your life") had been cited in 1 in 5 US divorce cases and that the number of people using social media to conduct affairs seems to be on the rise.

In a dramatic but slightly bizarre press release titled "Don't Let Your Marriage be Among the 1 in 5 Destroyed by Facebook" issued by Loyola University commenting on the survey, clinical psychologist Steven Kimmons is quoted as saying that "improper use" of Facebook can "quickly devolve into marital disaster." The press release then offers some "safeguards" that must be intended for people with exceptionally poor impulse control:

Look at how you use social media to see whether you talk to more men or more women and whether there is a certain type of person you prefer chatting with. "That can tell you something about how you’re using social networks. You may not even be aware that you’re heading down a road that can quickly get pretty dangerous."
Set limits from the get go. "Spell out from the beginning with your online contacts what your expectations are of social networking relationships."
Don't get naughty with your online friends. "It’s a good idea to not engage in intimate conversation with someone who is not your spouse." Duh.
Share passwords with your spouse and "place the computer in a common area in the house or apartment." Like you would with an irresponsible teenager.

Hey, I'm on Facebook; drop me a line.