Website Begins Integration of New Rules

On 1 July 2010, the current Supreme Court Rules of Court will be replaced with two new sets of rules, one for general civil litigation and one for family law matters (PDF). This isn't the sort of tinkering we're used to seeing every summer, this is a stem to stern overhaul with brand new rules and new court forms. Even the names of the parties are changing!

The Rules of Court are tremendously important. They guide the conduct of every aspect of the law suits before the court, from how service is effected to the scheduling of applications to the production of documents and the remedies available when production is inadequate. When the rules change, it's a big deal. It also means that websites like mine need to have overhauls of their own to make sure that they stay current.

A new section of my website, Rules 101, offers an overview of the new family law rules and will be updated from time to time as I'm able to compile the information. So far, Rules 101 has a summary of procedure under the new rules, new rules' deadlines and timelines, and a description of the process for chambers proceedings.

My July 2009 post Government Announces Implementation of New Family Law Rules discusses the new rules and has links to all of the relevant background documents.

More Cuts to Legal Aid, Part 2

I have just learned that a number of family law lawyers and criminal law lawyers in Kamloops have formed a committee and voted to withdraw duty counsel services in response to the recent cuts to legal aid including the closure of their regional Legal Services Society office, and the impact the cuts will have on access to justice. The spokespeople for the committee are Graham Kay (250-374-1989) and David Dundee (250-828-9998).

The strike will begin on 11 January 2010 and affect Provincial Court criminal law matters and Provincial Court and Supreme Court family law matters in Kamloops and Merit.

Read Part 1.

Section 15 Reports

Important Update: The Family Law Act came into force in March 2013 and replaced the Family Relations Act, which is the subject of this post. The parts of the old act that talked about custody and access reports are now found at s. 211 of the new act, and those reports are now called "section 211 assessments" or "needs of the child assessments." I have added a brief comment on the new act to the end of this post.

"Custody and access reports," "custody assessments" and "section fifteen reports" are some of the names given to reports prepared pursuant to s. 15 of the Family Relations Act. The purpose and scope of these reports can be a bit confusing, because they seem to be treated differently in the Provincial Court and the Supreme Court, because different sorts of people prepare them, and because the scope of s. 15 is really quite broad.

The Family Relations Act

Section 15 says, in part, this:

In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who

(a) has had no previous connection with the parties to the proceeding or to whom each party consents, and

(b) is a family counsellor, social worker or other person approved by the court for the purpose.

(2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.

I've highlighted the bits that are particularly important for this discussion. Essentially, s. 15 says that the court can order that a report on any family issue be prepared by any person, in whatever manner the court directs, and the court can make an order that a report be prepared on its own initiative or on the application of a party.

Most of the time, people want a s. 15 report for the assessor's recommendations about things like where the children should live most of the time and the optimum parenting schedule. It can happen, however, that people want the assessor to look at a specific problem such as a parent's drinking, mental instability, drug use or personality disorder, and comment on how the issue affects the person's capacity to parent.

Provincial Court

Most of the time, s. 15 reports prepared in matters before the Provincial Court are prepared by family justice counsellors, employees of the Provincial Court who have some training in conducting custody and access assessments, and usually have a background in social work or psychology.

These reports are free but they can take a terribly long time to complete, anywhere from six months to one year or more, depending on which courthouse the parties are at. (Surrey and Vancouver are notoriously overburdened courts.) A private psychologist or psychiatrist could probably get the assessment done faster, but they charge for their work and I'd expect that the cost would start at about $3,000 and go up to $9,000 or more, depending on the circumstances and the scope of the report.

The court can order that a s. 15 report be prepared at the first appearance, at any other appearance before trial and at a family case conference. The court generally won't order s. 15 reports at trial... by then it's too late, and ordering the report would only serve to delay the trial.

Supreme Court

Section 15 reports prepared for the Supreme Court are usually done by private psychologists and psychiatrists. Although they come at a pretty significant cost, they can usually be prepared within three to six months, depending on the issues.

The court can order that a s. 15 report be prepared at a judicial case conference or at any application brought before trial. The court will not order the preparation of a s. 15 report at or on the brink of trial.

Rules of Evidence

In the Supreme Court, s. 15 reports stand as expert evidence. "Expert evidence" is different than other kinds of evidence, because it offers an expert opinion about the best parenting arrangements for the children.

(Normally, the only kind of evidence allowed at trial is evidence of facts: "I saw Ted outside the bank," "I have a blue Chevy Pinto," "last year we went to Chilliwack for Christmas," and so on. Opinion evidence is usually about beliefs, assumptions and conjectures: "aliens live on Jupiter," "my cat is better than your cat," or "Jerry is a bad father." Expert opinion evidence is about an expert's professional conclusions about an issue or question beyond most people's knowledge: "foundations need to be drilled to a minimum depth of 6m in Prince George to avoid frost heaves," "gerbils have an average I.Q. of 15" or "the kinematic viscosity of single non-winter grade oils is measured at a temperature of 100 °C in units of mm²/s.")

As expert evidence, s. 15 reports are often subject to the special provisions of Rule 40A about who is an expert and who isn't, introducing expert reports at trial and cross-examining the person preparing the report. The Supreme Court is usually very strict about how evidence is admitted at trial and how expert reports can be used.

Things are a bit different in the Provincial Court. Rule 11(2) deals with s. 15 reports, and this rule doesn't describe persons preparing s. 15 reports as "experts." In fact, the rule seems to treat s. 15 reports entirely differently than expert evidence, which is dealt with in Rule 11(3) to (8). This is probably why family justice counsellors are able to prepare s. 15 reports for Provincial Court: they are not expected to qualify as experts and s. 15 reports are treated differently than the usual sort of expert evidence.

Views of the Child Reports

Views of the child reports are a kind of s. 15 report in which the assessor is hired to meet with the child and report back to the court or the parents on the child's views and wishes. These reports can be prepared by experts (psychologists or psychiatrists) or by non-experts (lawyers, court workers and so forth). They do not recommend or suggest a certain parenting arrangement; they are primarily geared toward finding out what the child's preferences are, even though there's no guarantee that the court will do what the child wants.

Although it probably seems that these reports don't have a great deal of utility, in fact they are very helpful when a dispute is primarily focused on parenting issues, especially in the context of settlement discussions at case conferences. Parents can be profoundly influenced toward reason by a third-party's report of their children's wishes.

When these reports are prepared by experts, the expert will sometimes administer some tests to determine the child's truthfulness and honesty, and the expert may look at difficult issues such as whether the child has been alienated from a parent or whether the child has been coached to have a certain preference.

Non-experts don't have the special skills to administer tests like that or to give opinions about whether a child has been influenced by a parent or alienated against a parent. As a consequence, while their reports are much more limited in scope and usefulness, they are generally much cheaper and faster to obtain than expert's views of the child reports: you're not paying for an expert and the assessor isn't going into an expert's level of detail.

There is another difference between expert's and non-expert's views of the child reports that has to do with the previous discussion about evidence. Expert's views of the child reports are expert evidence that can be used in both the Provincial Court and the Supreme Court. Although non-expert's views of the child reports can be used in the Provincial Court because of the special provisions of Rule 11(2), non-experts won't meet Rule 40A's test for admissibility and can't be used as evidence in the Supreme Court.

Summary

Section 15 is really quite broad. It can be used to make an application for almost any kind of report in a family law case... (I was about to say "except for medical reports and financial reports," but nothing in s. 15 really limits the sort of report the court can order to just issues about children, does it?) ...but is most often used to get an assessment of the parenting arrangements that would be best for the children.

Custody and access reports can take a lot of time to process in the Provincial Court but they are usually free. Custody and access reports can be had much more quickly in the Supreme Court, but since they're done by private psychiatrists and psychologists they can be very expensive.

Views of the child reports are an underused species of s. 15 report, and are usually must faster and cheaper to obtain than custody and access reports, particularly where the report is prepared by a non-expert. They do not have the same persuasive effect on the court that custody and access reports have, however, and non-expert views of the child reports may not be admissible in Supreme Court matters.

Update: 24 August 2014

Lots has happened since I wrote this post in 2009. Most importantly, the Family Law Act has replaced the Family Relations Act, and what used to be known as "section 15 reports" are now known as "section 211 assessments" or "needs of the child assessments."

Assessments under the new law can be a lot more focussed than they were under the old law. The new law says that the court can appoint a family justice counsellor, social worker or "another person who is approved by the court," normally psychologists or registered clinical counsellors, to do report on the needs of a child, the views of the child and/or the ability and willingness of a party to meed the needs of the child. The old law just said that the court could order "an investigation into a family matter."

Here's what s. 211 of the new law says:

(1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:

(a) the needs of a child in relation to a family law dispute; 

(b) the views of a child in relation to a family law dispute; 

(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2) A person appointed under subsection (1)

(a) must be a family justice counsellor, a social worker or another person approved by the court, and 

(b) unless each party consents, must not have had any previous connection with the parties.

(3) An application under this section may be made without notice to any other person. 

(4) A person who carries out an assessment under this section must

(a) prepare a report respecting the results of the assessment, 

(b) unless the court orders otherwise, give a copy of the report to each party, and 

(c) give a copy of the report to the court.

(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.

The new law improves on the old by:

1. emphasizing the child-centred nature of the assessor's enquiry, 
2. allowing the court to direct the assessor to consider the children's views, and
3. focussing the enquiry on the ability of a party to meet the children's needs.

Beyond this, however, all of the old rules, standards and expectations that applied to s. 15 reports will continue to apply to s. 211 assessments.

On another subject, I had the good fortune of presenting with Dr. Phil Stahl, a highly respected forensic psychologist practicing in Arizona, about shared parenting after separation at a recent conference. Dr. Stahl spoke about the scientific standards which should be expected of people preparing needs of the child assessments at a later section, and his talk was fascinating, to say the least. Dr. Stahl has just just published a book on this issue, which I am happy to recommend. Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony is available through the American Bar Association.

More Cuts to Legal Aid, Part 1

The axe has fallen on the Legal Services Society once more. LSS, the organization which provides legal aid in this province, was first hit with funding cuts in 2002. Those cuts resulted in the scaling back of family law services and a refocusing of LSS's delivery model away from hands-on litigation assistance toward litigation advice and web- and telephone-based legal information services. On the bright side, this change resulted in a significant improvement of LSS's primary website and the development of a fantastic website on family law issues. On the less bright side, the funding of legal services for family law cases was nearly extinguished.

The new cuts will see the LawLINE advice service, the Community Advocate Support Line, and all but one of legal aid's regional offices by 1 April 2010. Although more than 50 staff members will lose their jobs and I understand that almost all of LSS's staff lawyers have been let go, LSS's executive director, Mark Benton, has said that service levels won't be affected.

An employees' group called Access to Justice has posted a news release about the cuts, a collection of links to other stories about the cuts and an online petition you can sign; please visit their website. LSS's 3 November 2009 news release is available here.

What's "Without Prejudice" and What's Not

You'll often see certain lawyer's letters marked "without prejudice," and it's not always clear what "without prejudice" means, particularly for people who aren't lawyers. The question has recently come up in a file of mine, and I thought I'd take the opportunity to explain things.

"Without prejudice" protects settlement proposals

Because of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest is correspondence: the exchange of letters setting out the terms on which the lawyer's client would be prepared to settle the case.

As a general but not invariable rule, settling a file means finding a compromise between the parties' positions, which means that neither party gets everything he or she is looking for. Someone who is asking for sole guardianship might compromise and agree to an order for joint guardianship as long as he or she has the children's primary residence; someone who is asking for 70% of the family assets might compromise and agree to take half the family assets as long as spousal support is paid for a certain number of years.

Now, although compromise might be necessary for settlement, the position a party takes to achieve settlement is rarely the position that the party takes at trial. At trial, the person seeking sole guardianship is still going be demanding sole guardianship, and the person after the majority of the family assets is still going to be after the majority of the family assets. But if this is the case, which it usually is, people need a way to communicate settlement proposals without affecting their positions at trial. In other words, if you're suing for twelve 1972 Ford Pintos, you need to be able to propose settlement for six 1972 Ford Pintos and three 1973 Ford Pintos without being held to that position at trial.

This is where "without prejudice" letters come in. Marking a letter "without prejudice" protects the contents of the letter from being disclosed; the letter is being sent without prejudice to the party's position at trial.

To be clear, however, just marking a letter "without prejudice" isn't going to automatically exclude the letter from use at trial. To be excluded, the letter must actually contain a settlement proposal; as our Court of Appeal said in a 1984 case called Belanger v. Gilbert, "not all letters so marked are to be held inadmissible." In another appeal case, Schetky v. Cochrane, from 1918, the court set out what was required to protect "without prejudice" letters:

"... the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation...

"... before the privilege arises two conditions must exist, viz.: (a) a dispute or negotiation between two or more parties; and (b) in which terms are offered"

A "without prejudice" letter that meets this test cannot be put into evidence, whether at trial or as an exhibit to an affidavit.

To be even more clear, it is only the parts of "without prejudice" letters proposing settlement that are protected. A letter that talks about the number of Ford Pintos required to achieve settlement as well as setting hearing dates and the colour of the author's pants, can certainly be be put into evidence about the hearing dates and the author's pants, as long as the portion dealing with the Pintos is blocked out.

Costs

Proper "without prejudice" letters can't even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs. The English Court of Appeal summarized this point in a 1984 case called Cutts v. Head:

"...the court is able to examine and consider such correspondence, where the offeror, in the body of the correspondence in issue, expressly reserves the right to bring the letter to the notice of the judge on the issue of costs after judgment."

(Letters like these are sometimes called Calderbank letters, in reference to the 1975 case from the English Court of Appeal which authorized this narrow exception, Calderbank v. Calderbank.)

Subsequent letters not marked "without prejudice"

Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:

Where the privilege exists, it covers not only the particular letter itself, but also all subsequent parts of the same correspondence on both sides, notwithstanding that they are not expressed to be “without prejudice," unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, where a letter offering terms, but not stated to be “without prejudice” is followed by another saying that the communications between the parties are to be “without prejudice” the former letter is protected.

"With prejudice" letters

"With prejudice" letters are different than "without prejudice" letters. Such letters not only deny any claim of protection from production to the court, they say that the letter will be produced to the court.

Of course, because marking a letter "with prejudice" doesn't make the contents of the letter any more true, or any more compelling and persuasive to judge who reads it; in fact, it's not entirely clear what is achieved by marking a letter "with prejudice" apart from expressing the author's conviction about the importance or accuracy of the contents.

To put it another way, any letter not marked "without prejudice" is "with prejudice" by definition, in the sense that there's nothing stopping the letter from being shown to the court.

Summary

1. "Without prejudice" letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
2. The phrase "without prejudice" only protects settlement proposals. Marking your laundry list or any other communication "without prejudice" isn't going to stop the document from being used in court.
3. The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out.
4. If a "without prejudice" letter is going to be used to argue costs down the road, the letter needs to say so or it can't be used to argue costs.

What Custody and Guardianship Really Mean

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.

It's difficult to tell the difference between the rights and duties custody involves from the rights and duties associated with guardianship. This confusion is aggravated because the Divorce Act only talks about custody, but the Family Relations Act talks about both custody and guardianship, and because we get a lot of misleading information about these issues from American media. The explanation, however, involves a history lesson.

The first law on divorce was the UK Divorce and Matrimonial Causes Act, passed in 1857, which became part of the laws of British Columbia as a result of the proclamation of governor Sir James Douglas on 19 November 1858. The Divorce and Matrimonial Causes Act disposed of the whole issue about children in one sentence, which gave the court the authority to make an order about custody at the time it was making an order about divorce, if it thought the custody order was appropriate.

So far, we're still talking about a concept everyone will understand. Custody, within the meaning of the first Divorce Act, describes the right of a parent to direct his or her child's life and make decisions about education, health care, moral instruction, sports activities and so forth, as well as the duty of a parent to provide his or her child with the necessities of life and an education.

Guardianship was first discussed in legislation in British Columbia's Apprentices and Minors Act, passed at some point in the late 1880s. This law discussed the duty of masters to provide the apprenticed children in their care with the necessities of life and an education, and the right of masters to benefit from the child's labour and make decisions about the child's education, health care and so on. Later on, these basic provisions about guardianship were moved into the Infants Act and, by 1930, into the Equal Guardianship of Infants Act.

Guardianship under these laws concerns the rights and duties people have in respect of the children who are in their care. These rights and duties are exactly the rights and duties that parents have, the difference is that these rights and duties are being exercised by someone who isn't a parent. In other words, guardianship is about the parental rights and duties exercised by non-parents.

So far, this still makes a lot of sense, especially when you think about the sort of people who might be guardians today: the person you might ask to care for your children in the event of your death, or the people with whom children are placed when they have been seized from their parents by the government.

Problems started cropping up in 1978 when the provincial government decided to dump all of the laws about separated families into a single piece of legislation, the Family Relations Act. In this new law, custody and guardianship were discussed side by side, and the law now said that "any person" - not just parents - could apply for custody, and that "any person" - not just non-parents - could apply for guardianship. Since parents could now apply for both custody and guardianship parents did apply for both custody and guardianship, and it became difficult to differentiate between the rights and duties included in "custody" and the rights and duties included in "guardianship."

The best that could be said was that "guardianship" now contained the nuts and bolts of parenting: the right to say where the child went to school, the right to direct the course of the child's medical treatment, the right to say where the child would live, the right to say what the child would wear to school and the right to get information from the child's doctors, teachers and coaches. "Custody" suggested a bundle of rights sort of like ownership, in the sense of having the home where the child lived most often.

Things got even worse as time went on, however, because the courts began to award joint custody without requiring parents to share their children's time equally or even near-equally. I, for example, represent parents who live all over the world but have joint custody of children who live here in British Columbia. None of these parents see their children more frequently than once or twice per month, and most see their children only once or twice per year, yet they all have joint custody of their children.

As a result of this evolution in the law, there is no connection at all between the amount of time a parent has with a child and the likelihood of that parent having joint custody or sole custody of the child, or no custodial rights at all. "Joint custody" now really only means that a parent is at least an okay sort of parent, and that he or she gets along relatively well with the other parent. That's about it.

Since so much significance was now lost in the distinction between sole custody and joint custody, the courts began to award joint custody in almost all cases where both parents were good enough parents and got along well enough with each other. At the same time, the courts began to award joint guardianship more and more commonly, and joint guardianship would be awarded with even less reluctance than joint custody... as long as both parents were involved in the child's life and were capable of maintaining the bare amount of communications necessary to discuss things from time to time.

To summarize, sole custody versus joint custody doesn't mean very much any more. In fact, custody doesn't mean much at all compared to guardianship; guardianship is what's most important because guardianship is all about the practical parenting and raising of a child. As well, sole custody doesn't give a parent any more authority than the other parent, as long as the parents have joint guardianship, and joint guardianship is now the rule rather than the exception.

For a longer and more detailed discussion, go to www.bcfamilylawresource.com.

New Website for Children

The BC Justice Education Society, formerly the Law Courts Education Society of BC, has launched a new website, www.kidsbc.ca, aimed at children whose parents are splitting up. The website offers lots of information about separation and the legal process, as well as information about children's experience of and feelings during separation, how separation may impact on their home life, and how their parents might react to separation. I am very impressed with this website.

The new website should nicely complement the provincial government's existing efforts in the area, available at www.familieschange.ca.

Government Announces Implementation of New Family Law Rules

The provincial government announced today that new Supreme Court family law rules will come into effect on 1 July 2010.

The new rules for family law matters are one of the recommendations flowing from the Family Justice Reform Working Group's 2005 report, A New Justice System for Children and Families (PDF). A draft of the new rules was posted on the website of the Justice Review Task Force in 2008 for comment and consultation.

The new rules are intended to reduce expense by gearing the complexity of the litigation to the complexity of the case, limiting rights of discovery and requiring experts to serve the court rather than the parties. Family law cases will be more tightly managed and mediation will be mandatory on the request of a party. A completely new set of court forms will standardize family law pleadings and make them more accessible. A summary of other highlights (PDF) is available from the JRTF.

Update

The new rules (PDF) have now been published. Be careful about printing them, they run to some 382 pages.

Lawyers' Magazine Publishes Rate Survey

Canadian Lawyer has published its 2009 survey of lawyers' fees, which includes the rates charged for common family law activities broken down by region and size of firm.

Supreme Court of Canada issues Important Judgment

On Friday 26 June 2009 the Supreme Court of Canada released its judgment in A.C., A.C. and A.C. v. Director of Child and Family Services, 2009 SCC 30. The case involves a young woman who, at the age of 14, was forced to undergo a blood transfusion against her wishes in the course of her medical treatment. The child, a Jehovah's Witness, had refused to give her consent to the treatment, whereupon, following a psychiatric assessment, the child was apprehended by the Manitoba child welfare agency which authorized the transfusion on her behalf.

Although this case was largely argued as a breach of the child's rights under the Charter of Rights and Freedoms, it will likely have a huge impact on family law as a result of the court's discussion of the best interests of the child and the weight to be given to a child's wishes in assessing the child's best interests.

Under s. 16(8) the Divorce Act, the child's "best interests" are the sole criterion to be taken into account in making decisions about access and custody, "as determined by reference to the condition, means, needs and other circumstances of the child." The Family Relations Act says much the same thing at s. 24(1), although the FRA provides a more lengthy list of factors and says that the court should also consider the views of the child, "if appropriate."

In family law cases, the courts have been willing to consider the preferences of even very young children, but the amount of weight the court will give those preferences depends entirely on the child's age, development and maturity. Most of the time, this means that the court will listen to wishes of any child able to express them and be increasingly inclined to follow those wishes as the child grows up; the court will take the wishes of 11 year olds quite seriously, it will take the preferences of 14 year olds still more seriously, and it will almost always do what 16 year olds want.

In A.C., the child was 14 years old, almost 15. The Manitoba child welfare law said that the court could authorize medical treatment it believed to be in the child's best interests, with the wishes of children 16 or older being determinative of the issue. As a result, the court's power to force the child to have the transfusion rested wholly on the court's assessment of the child's best interests knowing, however, that the child objected to the treatment.

The court held that the best interests test in the Manitoba law should be considered to operate on a sliding scale, with the child's preferences being given more weight as the child grows older, subject to the court's assessment of the child's maturity. The degree of scrutiny applied in this assessment, however, should increase with the importance of the decision to be made, taking into account:

1. the intellectual capacity and degree of sophistication of child to understand the decision to be made;
   
2. the stability of the child's views and whether they are a true reflection of the child's values and beliefs;
3. the impact of the child's lifestyle, family relationships and social affiliations on the child's ability to exercise independent judgment; and,
   
4. the existence of any emotional or psychiatric vulnerabilities impacting on the child's decision-making ability.
   

Neither the Divorce Act nor the Family Relations Act prescribe an age at which a child's wishes must be taken into account when a decision must be made about the child's parenting arrangements, and even the FRA, which says the court may take those wishes into account doesn't say they must be taken into account. As a result, the case law is somewhat muddy on when and whether children's wishes must be heard, how much weight should be given to them when they are heard. This decision should give critical guidance on all of these issues.

Alberta Minister Pronounces upon the Proper Raising of Children

The CBC has reported that Alberta's Finance Minister, Iris Evans, has pronounced upon the raising of children in a recent speech to the Economic Club of Canada. According to the CBC, Minister Evans said that good parenting means that "when you're raising children, you don't both go off to work and leave them for somebody else to raise."

Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income! One solution would be to raise the Canada Child Tax Benefit and the National Child Benefit Supplement to a level that would enable families to leave a parent in the home, but I'm not sure that such a suggestion would have much appeal to a conservative finance minister.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

These search terms are all about marriage and divorce.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> consequences of getting remarried without getting divorced

This one's easy enough: your new marriage won't be valid.

Without a divorce, any other marriage is technically bigamous under the Criminal Code yet also void under the common law.
>> how many years after separation are you considered divorced

Never. Until you get that divorce order you're still married. No marriage is over until a court has made a divorce order, no matter how much time has passed since the spouses separated.

>> is it ungodly to attend a person's third marriage

I don't normally pronounce on religious issues, but this search term was too hard to pass up. If it is ungodly, perhaps you need to find a new religion if you're really prepared to put your religious scruples above your loyalty to a friend and a celebration of his or her happiness.
>> use of the divorce act for common law relationships canada
Also easy: none.

The federal Divorce Act only applies to people who are married to each other or who used to be married to each other. Unmarried couples, including couples who qualify as common-law, only have the provincial Family Relations Act and a few other laws to rely on in resolving the issues arising from their separation.
>> common law marriage divorce needed to end relationship

Common-law couples are not married; there is no such thing as a common-law marriage.

All "common-law" status means is that a couple qualify as "spouses" within the meaning of a particular law. Some laws, like the Family Relations Act and many other provincial laws, define a spouse as someone who is married or someone who has lived in a "marriage-like relationship" with another person for at least two years. Other laws have different definitions of spouse. Most federal laws, for example, only require that the couple have lived together for one year, while laws about welfare eligibility require an even briefer period of cohabitation.

Since common-law couples aren't married, there's no need for them to get a divorce to formally end their relationships. A common-law relationship is over when the couple separates. There's no magic to it, nor any need for a court order.

Why you DON'T want a cohabitation agreement

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've 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've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.

Questions about cohabitation agreements come up fairly often in my line of work, and it seems that I'm constantly dealing with this one particular issue: how cohabitation agreements do and do not help to protect assets brought into a relationship. This issue's come up yet again, and I thought I'd write about it in a broader context.

People often think they need a cohabitation agreement when they move in with someone in romantic relationship. That's not true; you don't need a marriage agreement when you marry someone and you don't need a cohabitation agreement when you begin to live with someone.

That being said, there are a handful of good reasons why you might want a cohabitation agreement: if you or your partner are bringing children into the relationship; if you or your partner want to ward against the chance of a spousal support claim when the relationship ends; or, if you want to protect the property you're bringing into the relationship. The last reason is the most common reason people want a cohabitation agreement, and while this strategy may work in other provinces, it doesn't work in British Columbia. In fact, it makes things worse. A lot worse.

To be completely clear: you do not want a cohabitation agreement if you live in British Columbia and the agreement is meant to protect property. Here's why.

The British Columbia Family Relations Act treats married and unmarried couples very differently when it comes to property. For married couples, the act says they should both have an equal share of all of the family assets, regardless of who owns the asset or whether it was brought into the relationship or bought afterward, and most assets will qualify as family assets. For unmarried couples, including common-law couples, the act says nothing at all; unmarried couples are expressly excluded from the parts of the FRA that divide property. Unmarried couples are limited to making property claims under the law of trusts, and that usually produces results that are far, far less generous than the equal split married couples get under the FRA.

In summary...

1. Married Couples: The Family Relations Act presumes that each spouse gets half of all the assets, and almost all assets wind up being part of the pool of assets that get divided. Although this presumption can be challenged, most of the time the assets are split equally or near-equally.

2. Unmarried Couples: The parts of the Family Relations Act that deal with the division of assets don't apply to unmarried couples. Unmarried couples can only make claims against each other's property under the law of trusts, and those claims are tough to prove and hardly ever result in a division close to the division that would have resulted if the couple had been married

This is where s. 120.1 of the Family Relations Act comes into things.

Under s. 120.1, the parts of the FRA that divide property between married couples apply to agreements between unmarried couples that deal with property and would be a marriage agreement had the couple been married. Making things worse, under s. 65 the court has the express authority to order a division of assets other than a marriage agreement calls for if it thinks the terms of the marriage agreement are unfair... and what's unfair? Often a division of assets that is different than the equal split prescribed for married couples.

In other words: if an unmarried couple make a cohabitation agreement about property, the rules about property division for married couples apply to the agreement and the court can divide property using the standards that apply to married couples.

Now, instead of the crappy trust law claims an unmarried couple would have had to suffer through in making a claim to divide assets, the couple have all the benefits of the rules that apply to married couples, including the presumption that a fair division of assets is an equal division of assets. This is hardly the effect most unmarried couples assume a cohabitation agreement is going to have; instead of protecting their assets from division, the agreement has exposed the assets to a potential claim which is much worse than the claim that would have been available without the agreement! A bit counterintuitive, isn't it?

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've 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've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.

Rights of Access Trump Right to Breastfeed

The Globe & Mail has today reported on an interesting case out of the Ontario Supreme Court which addresses a difficult problem: what should the court do when a mother's breastfeeding regimen interferes with the other parent's time with the child?

This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his or her time with the child broken up into two- and three-hour blocks separated by one or two days, the access often has to occur with the other parent standing by. Despite this, no one in their right mind would deny a mother the right to breastfeed an infant, which tends to leave the other parent hanging.

This, at least, is the standard form of the breastfeeding dilemma, which usually resolves itself by the time the child is weaned. On rare occasions, however, a child won't be weaned by the 6 to 24 month mark (www.medicinenet.com), sometimes as a result of the mother's belief in the health benefits of long-term breastfeeding. In cases like this, the other parent's access to the child can become seriously cramped.

In Johne v. Cavannah, however, the judge found that the mother's preference for breastfeeding their 29 month old child had "a secondary impact upon [the father] in that it is used as an excuse to restrict his access." Making things worse, the mother refused to indicate when the child was going to be weaned, leaving the father in limbo.

As a result of the mother's approach, and certain provisions of Ontario's Family Law Act which equally entitles parents to custody, the judge held that the parents should move to a shared custody arrangement and that if the mother wished to continue to breastfeed, she would have to provide the father with bottles of pumped milk.

Update: 28 April 2009

A reader's comment has made me think a bit more about the implications of the Johne v. Cavannah case which deserve some additional discussion.

Fathers (this is a gender-based issue) are often quite vexed by mothers' decision to breastfeed when that decision interferes with their ability to spend time with their children. As I've already said, however, the personal inconvenience of fathers must take a backseat to mothers' reasonable decisions to breastfeed, which comes close to being a fundamental human right if it isn't one already.

Trouble comes calling when a mother continues to breastfeed a child well beyond regional weaning norms, and the father begin to wonder whether or not the mother isn't dragging things out just to prevent him from having the child over night, as opposed to pursuing a legitimate health care objective. This is the issue the court in Johne was called upon to address, but what makes Johne stand out is that the court actually concluded that the mother was intentionally delaying things to frustrate the father's time with the child.

While fathers should certainly look at Johne with hope and take succour in the knowledge that this obstruction to access can be overcome, they should not assume that mothers' right to breastfeed will be set aside for children within the usual nursing age or that it will be easy to get such an order, regardless of the child's age, without proof of the mothers' bad faith.

BC Supreme Court Issues Important Judgment

Varga v. Varga, 2009 BCSC 416 concerns, among other things, the determination of a husband's obligation to pay child support for two children of his wife's previous relationship and child support for a child of their own relationship when custody of that child was shared.

This case involves two tricky questions about child support: how child support should be calculated when custody is shared; and, how a step-parent's child support should be calculated when someone else also has a responsibility to pay child support. Normally, child support is calculated simply by referring to the Child Support Guidelines tables and looking up the amount payable at the payor's level of income. The issues in Varga involve two exceptions to this general rule which allow the court to pick an amount of child support different than what the Guidelines tables require...

1) Under s. 5 of the Guidelines, the court can order a step-parent to pay a different amount of support if there is someone else, like another biological parent, who also has a responsibility to pay for the kids. As long as the other parent is actually paying child support, the court will usually treat the step-parent's obligation as a kind of "top up" to the biological parent's obligation, and the step-parent is rarely required to pay the full table amount of child support.

2) Under s. 9 of the Guidelines, the court can order a parent to pay a different amount of support if the parents share the children's time equally or near-equally. Although there are different ways of calculating how much child support should be paid, in general the court will make the payor pay the full table amount minus the full table amount the recipient would pay; this is called the "set off" approach.

In Varga, the court decided that the set off approach for the one child of the parties' relationship wouldn't do because it would result in too great a difference in the standard of living in the child's two homes, and too great a decline from the standard of living the child enjoyed when the parties' were still together. The court ordered the husband to child support of $650 per month, a bit less than the husband's child support table obligation of $755 and a lot more than the set off amount of $376.

With respect to the other two children, the court described the task required by s. 5 of the Guidelines: the court must consider the legal duties of the biological parent and quantify the amount of support the parent should pay, and the amount of the biological parent's child support obligation should presumptively be the full amount owing under the child support tables. The problem, however, was that the child had left the wife to live full time with the father about a year and a half after the husband and wife separated. The court decided that the husband would have no child support obligation from the date the child began to live with the father, however, he would hate to pay arrears of child support accumulating between the date of separation and the date the child went to live with the father.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> paying for university after separation

>> child support college special expenses

>> do I still pay child support if the child is at university in another town

These questions all deal with one of the more difficult issues in family law, the payment of child support and special expenses for adult children who are studying at university or college.

The law behind this issue is simple. The Divorce Act and the Family Relations Act say that child support is payable for all kids under the age of majority, and for kids older than the age of majority of they are "unable to withdraw from the charge" of their parents. "Unable to withdraw" usually means that the child is unable to support him- or herself because of illness or disability, or because the child is engaged in post-secondary studies.

On top of the base payment of child support, parents are often also required to pay towards the cost of the children's "special and/or extraordinary expenses." Where an expense qualifies as a special expense under s. 7 of the Child Support Guidelines, both parents must contribute to paying the expense, and they contribute in proportion to their incomes. University and college costs almost always qualify as a special expense.

Here's where it can get a bit complicated.

Child Support

Normally, the table amount of child support is what gets paid for the support of an adult child.

Despite this, the court has the discretion to order that a different amount of child support should be paid, under s. 3(2)(b) of the Child Support Guidelines, if there is some objective reason why a different amount should be paid. In Hickman v. Hickman (2003 BCSC 116), the court talked about this issue at length and said that good objective reasons might include income from things like RESPs, scholarships, student loans, trust funds or inheritances, or disability payments. Whether the court will allow an exception to the tables will always depend on the circumstances of the case.

The person who receives the child support payments is usually the same person who has received them all along, the other parent. This can sometimes seem unfair, especially when the child is going to school in another city and lives in that city.

It is possible for a parent to pay child support directly to an adult child. This usally happens where the parents agree such an arrangement is appropriate; the court rarely makes orders to this effect. In general, the court will require that child support be paid to a parent as long as that parent maintains a room in his or her home for the child and the child stays there from time to time during school holidays.

Special Expenses

There are two conflicting lines of cases on the circumstances in which parents must pay the costs of post-secondary education and which costs the parents must cover.

The strict line of cases say this: post-secondary expenses should only be paid if the child is enrolled in a full-time course of study, and even then the course of study must be targetted to employment (unlike philosophy, for example my undergraduate focus).

The less uptight line of cases make post-secondary expenses payable whenever the child is enrolled in post-secondary studies, regardless of what the child is studying. Under these cases, children can drop out and return to school, or take a part-time course load or switch majors every year, and still have their expenses covered.

The costs that qualify as special expenses under the strict line of cases are limited to tuition fees, student fees and textbook costs. Other expenses may qualify under the less uptight line of cases, including for things such as residence, meal plans and the like.

The amount of the special expenses which the parents must contribute to is the net cost of these expenses, after all contributions from other sources have been applied to reduce the over all cost, such as student loans, scholarships, bursaries, fellowships, awards, grants and the like. Under the strict line of cases, children have been required to contribute earnings from their summer employment to these costs, obtain student loans, and provide proof that all available scholarships and grants have been applied for.

Additional information about child support and children's expenses, including a child support calculator and a special expenses calculator, can be found at www.bcfamilylawresource.com.

Family Relations Act Review Update

Frequent readers of www.bcfamilylawresource.com and this blog will recall the review of the Family Relations Act conducted by the Attorney General's office in 2007.

Rumour had it that the review had come to a peaceful death in the Spring of 2008 following a final public consultation about family violence and the involvement of children in the court process. Not so!

To the contrary, I have been informed that work behind the scenes continues and that the FRA Review is alive and well. Essentially, the fruit of the 2007/2008 consultations is being distilled into concrete policy options for presentation to government, in the expectation that government will select a course of action for pursuit in the Legislature once matters have calmed down after the pending provincial election.

This is very welcome news indeed. The subject matter of the FRA Review was extraordinarily broad and took a clean slate approach, unfettered by the shackles of tradition, and seemed to foreshadow the first real overhaul of family law in British Columbia since 1978. Now we must simply await the tabling of some new legislation, although I'd be surprised to see anything before 2010.

Update

I've just learned that the AG's office has published a summary [PDF format] of the public consultations. The summary is worth a read, and whomever wrote it should be commended for his or her clear writing style and skillful explanation of complex legal issues in plain language.

Supreme Court of Canada Releases Important Decision

On 19 February 2009, the Supreme Court of Canada released its judgment in Rick v. Brandsema (2009 SCC 10), a case about the duty of honesty and fair play spouses owe to each other when they are negotiating a separation agreement.

The court's judgment in this case follows the reasoning it established six years earlier in Miglin v. Miglin (2003 SCC 24), a case about separation agreements and spousal support. In Miglin, the court decided that the rules about commercial contracts shouldn't apply to separation agreements because of

"the particular ways in which separation agreements generally and spousal support arrangements specifically are vulnerable to a risk of inequitable sharing at the time of negotiation and in the future"

which largely result from the unique negotiating environment of separation agreements, an environment of

"intense personal and emotional turmoil, in which one or both parties may be particularly vulnerable."

As a result, the court held that not only must the spousal support provisions of an agreement be fair in themselves, they must be negotiated in a scrupulously fair manner, without either spouse being subject to "circumstances of oppression, pressure or other vulnerabilities."

In Rick, the court took this line of reasoning a bit further, and decided that agreements must also be negotiated with full and complete financial disclosure:

"A duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the results of negotiations undertaken in these uniquely vulnerable circumstances [of separation]. The deliberate failure to make such disclosure may render the agreeement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation."

The "objectives of the governing legislation" might be the objectives of a spousal support order, as set out in the Divorce Act, or it might be the presumption of an equal entitlement to share in family assets, as set out in the Family Relations Act.

To boil all this down, the cumulative effect of Miglin and Rick is that agreements must be negotiated with procedural fairness (fairness in the conduct of the negotiations) and must ultimately reflect substantive fairness (conformity with any relevant legislative goals) or court may set aside or vary an agreement:

1. The freedom of spouses to negotiate a fair settlement at the conclusion of their marriage depends on the integrity of the bargaining process.

2. The integrity of the bargaining process is at risk when a spouse pressures or manipulates the other spouse, or takes advantage of the vulnerability or weakness of the other spouse, to acheive a good deal. (Miglin)

3. The integrity of the bargaining process is at risk when a spouse fails to make full and complete financial disclosure. (Rick)

4. The integrity of the bargaining process can also be jeopardized simply by the stressful emotional circumstances of separation. (Miglin and Rick)

5. The court will intervene where the bargaining process was flawed and the terms of the agreement are at odds with the objectives of the Divorce Act or the Family Relations Act.

The court's summary is perhaps best:

"[T]he more an agreement complies with the statutory objectives, the less risk that it will be interfered with. Imposing a duty on separating spouses to provide full and honest disclosure of all assets, therefore, helps ensure that each spouse is able to assess the extent to which his or her bargain is consistent with the equitable goals in modern matrimonial legislation, as well as the extent to which he or she may be genuinely prepared to deviate from them.

"In other words, the best way to protect the finality of any negotiated agreement in family law, is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme."

Notice to Mediate expands to Vancouver and New Westminster Supreme Court Registries

The Notice to Mediate (Family) Regulation, BC Reg 296/2007, a regulation made under the Law and Equity Act, was expanded on 1 January 2009 to include the Vancouver and New Westminster registries of the Supreme Court.

The full text of the regulation can be found at the website of the Attorney General, along with the AG's fact sheet for lawyers and mediators.

In essence, the regulation says this:

• a party may trigger a mediation by delivering a Notice to Mediate (s. 3)
• the Notice to Mediate can be delivered between 90 days after the filed of a statement of defence and 90 days before the date of trial (s. 5)
• within 14 days of delivery, the parties must agree to a mediator (s. 6)
• failing agreement, a mediator will be appointed by a “roster organization” (ss. 7, 8, 9, 10 and 11)
• the mediator will have a screening session before the first meeting (ss. 12 and 13)
• the mediation session must occur within 60 days of the appointment of the mediator but not less than 14 days before trial (s. 24)
• the parties must deliver Statements of Facts and Issues to the mediator at least 14 days before the mediation session (s. 27)
• the parties must attend the screening session and the mediation session, with or without counsel, and may send a representative to attend in their place (ss. 16, 17, 18 and 19)
• a limited form of confidentiality applies at the mediation session, read this carefully (ss. 37 and 38)
• the mediator may conduct the screening session and the mediation session as he or she thinks fit, and may terminate the mediation if he or she thinks it appropriate to do so (ss. 15 and 33)
• at the conclusion of mediation, the mediator must deliver a Certificate of Conclusion of Mediation to the parties and to the AG’s DRO office (ss. 39 and 40)
  

It is unclear how forcing someone to mediate will be effective if they won't agree to it voluntarily. Nevertheless, I do hope there is some salutary value in the regulation. Time will tell.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> is it adultery if you are separated

>> I have been charged with adultery now what BC law

>> dating allowed during marriage separation

These are among the most common search terms that lead people to my website. Lots of people, it appears, are worried about the legal status of their marriage and the consequences of new relationships.

Let's get one thing straight right off the bat. Adultery is not a criminal offence in Canada, and it's nothing you can be criminally "charged" for. What this user probably means is that his or her spouse claimed adultery as a ground of divorce in a divorce action. All right, so what does that mean?

Under the federal Divorce Act, there are three reasons why the court can make a divorce order: the couple have been separated for more than one year, one of spouses has committed adultery, or one spouse has treated the other with such cruelty that the marriage can't continue. Our system of divorce is also "no fault," which means that the reason for the divorce claim has no impact on how the court will deal with a support claim, the division of assets or the children's parenting arrangements. In other words, the reason for the divorce should have no impact on how the divorce unfolds, whether that reason is adultery or something else.

The definition of adultery is pretty broad. Essentially, it means having sex with someone other than your spouse, providing your spouse hasn't forgiven you for it. Technically, a new relationship after separation could count as adultery, but in general most people will claim a divorce for the reason that caused their separation nor for whatever may have happened after they separated.

Yes, it is technically adultery after you've separated, but so what? Since the court isn't allowed to handle your divorce any differently whether the divorce is based on separation or adultery, there shouldn't be any negative consequences in your divorce action, and adultery certainly doesn't attract any criminal sanctions. As a result, yes, dating is allowed after separation.

What's with that support case from Quebec?

A spousal support case out of Quebec is all over the headlines lately. The thing is, the case doesn't mean very much from a British Columbia perspective, and it's nothing for anyone in BC to worry about, and this doesn't always come through when you're reading newspaper digests of the case.

The Quebec case involves a common-law relationship and a claim for spousal support. The claimant is arguing that Quebec law breaches her Charter rights as it doesn't allow common-law couples to claim spousal support. That's not the case in BC, where our Family Relations Act has allowed common-law couples to claim support since the 1970s.

See? Doesn't mean much at all.

Best of Random Answers

And now, more of my personal favourites from "Random Answers to Random Search Terms."

>> divorce for lack of sex

Unfortunately for some, a lack of sex in a marriage isn't a ground of divorce under the Divorce Act. If might be a reason for a divorce, but it's not a legal ground to end a marriage.

A lot of people think a marriage can be annulled because the marriage wasn't consummated. Not so. The case law on this subject says that simply not having had sex is not enough... one of the spouses must actually be unable to have sex, either because of a physical condition or a psychological condition.

Now, whether the marriage was consummated or not, or it's simply a matter of the couple's love life drying up, you can still get a divorce, if that's what you think would help. The Divorce Act recognizes three grounds of divorce:

1. separation for a period of not less than one year;
2. one party's adultery during the marriage; and,
3. mental or physical cruelty inflicted on one spouse by the other.

If a lack of sex has ended your marriage, then what you're probably looking for is a divorce based on separation, and that means you'll have to announce to your spouse that things are over and wait for a year to pass. In a case like this, the lack of sex might be the reason why the marriage has broken down, but the legal ground of divorce will be separation.

>> deducting clothes from child support

Short answer: no.

A person paying child support is not entitled to make deductions from the amount of support paid to account for the expenses the payor incurs on behalf of a child. The only expenses both parents must contribute to are expenses that qualify as "special expenses" within the meaning of s. 7 of the Child Support Guidelines, and those expenses are paid on top of the base amount of child support.

>> canada law bastard children

Illegitimate children, that is, children born of unmarried parents, used be at a disadvantage under the law. They had no right to use their fathers' names, they had no right of inheritance, and the father had no duty to support them. Not anymore.

Today in British Columbia, and indeed for the last several decades, there is no difference in status between children born of married parents and children born of unmarried children. None. Regardless of the circumstances of their birth, all children have the same right to support and use the name they chose. By the same token, the rights and obligations a parent has toward his or her child has nothing to do at all with the nature of the relationship he or she had with the other parent.

I'll post more favourites from the past and new Random Answers at irregular and unpredictable intervals.

Pro Bono Law BC Expands Services

Pro Bono Law British Columbia has just announced an expansion of its services with the introduction of the Wills & Estates Roster Program. The new roster is a welcome addition to PBLBC's other programs, such as the Family Law Roster Program and the Court of Appeal Roster Program.

PBLBC is a non-profit organization funded by the Law Society, the Law Foundation and other groups. It operates as a referral destination from clinic-based services like UBC's Law Students' Legal Advice Program, the Salvation Army's Pro Bono Program and the Access Justice Society, and tries to link people in need of legal services with the roster lawyers volunteering to offer it.

2008 In Review, Part 3: Case Law Roundup

This is an overview of some of the more interesting cases decided in 2008. The summaries below aren't a proper digest of each case, they just focus on the one or two issues which made the case interesting.

H(SM) v. P(R), 2008 BCSC

This case is a nice update on the law of retroactive child support. The wife sought a retroactive order going back to 2002 based on undisclosed increases in the husband's income. The court said that the simple payment of child support, which the husband had been doing all along, creates a presumption that the payor had discharged his duty. Given the wife's delay in bringing her application and the absence of any evidence that the child had suffered, the court only made an order with retroactive effect commencing mid-2007, the date when the parties exchanged financial statements.

Gonabady-Namadon v. Mohammadzadeh, 2008 BCSC

In this case, the husband, who lived most of the time in Iran, had been sending about $12,000 a month back to Canada to support his wife and children here. Following separation, the husband stopped supporting his family, pleading poverty. The court found that the husband hadn't made sufficient disclosure and imputed income to him of $250,000 a year for the purposes of support. The moral? If you're trying to duck a support obligation, you must make full and complete financial disclosure.

Loesch v. Walji, 2008 BCCA

In this case, the husband was found at an interim application to have an income of $1,600,000 per year, which figure was used to calculate a spousal support obligation of $50,000 per month, even though the Spousal Support Advisory Guidelines suggested that only the first $350,000 of the husband's income should be used to calculate his support obligation. The decision was upheld on appeal, partly on the basis that appellate courts should be very, very reluctant to interfere with interim orders.

Sihota v. Sihota, 2008 BCSC

The court in this case confirmed the dire consequences to one parent when the other parent has sole custody and sole guardianship. The mother had previously obtained an order for sole custody and sole guardianship and decided to send the child to school overseas. The husband objected and the court held that as the mother was the only person with custody and guardianship she alone had the right to make decisions about the child's living arrangements.

Majhenic v. Majhenic, 2008 BCSC

This is case is important for its discussion of the idea of "foreseeability" in variation applications. Where an order has been made about support or the care and control of children, it is usually open to someone to try and change the order where there has been a unforseeable change in circumstances. In this case, the husband had agreed at age 62 to an order requiring him to pay spousal support of $1,000 per month. On the husband's retirement at age 66 he applied to cancel his support obligation. The court required his support payments should end in three years on the basis that the husband's retirement was plainly foreseeable and it was unreasonable for the wife to assume his support payments would be permanent.

Trif v. Trif, 2008 BCSC

This case is remarkable for its unsual parenting arrangements. After separation, the wife sought to move from the Lower Mainland to Vancouver Island to pursue a new relationship and she applied for sole custody of the child. The father opposed the application and said that either the child should live with him or they should share the child's time on a rotating weekly basis. The court, after seriously criticizing a custody and access report, said that the child's time would be shared on a rotating yearly basis.

Stein v. Stein, 2008 SCC

This case is a bit complicated, but essentially the Supreme Court of Canada decided that a judge at trial can allocate responsibility for debts relating to the marriage that may or may not come into existence in the future and be for an unknown amount. The debt in question related to a tax shelter the parties had invested in during the marriage which was subject to unknown future tax consequences.

Francis v. Logan, 2008 BCSC

This is another variation-of-spousal-support-on-retirement case. Unlike Majhenic, however, the husband applied to reduce or end his spousal support obligation on retirement at age 63. The court refused the application as the husband's early retirement was entirely discretionary and not due to some illness or economic cause, and was done in the face of his spousal support obligation. The court allowed the husband to reapply when he turned 65.

Label v. Albanese, 2008 BCSC

The interesting part about this case concerns an application for retroactive child support made after the child had ceased to be a dependent minor child. The court dismissed the claim, saying that a child had to be a "child" as defined by the Family Relations Act at the time an application for child support is made, including an application for retroactive child support.

Bad News for Legal Aid

The CBC has reported that the Legal Services Society is in dire financial straits and will be slashing the funding provided for family law and criminal cases, cutting 38 staff positions including lawyer positions, and closing the Vancouver family law clinic.

This is really quite tragic, as it seems that LSS was only just beginning to recover from the devastating budget cuts imposed by Gordon Campbell's government in 2002 which saw the entire board of LSS resign in protest. Over the last few years, LSS had begun to set up new community clinics, like the one being closed, establish a new family law duty counsel program and a special website devoted to family law issues, as well as training outreach workers and community advocates across the province on family law issues and procedures.

You should expect that the axe will fall heaviest on LSS's family law programs today as it did in 2002, as the provincial government has a cost-sharing arrangement with the federal government on funding legal aid for criminal matters - in part resulting from the federal government's constitutional obligations - which is not matched in family law matters.

Update: 14 January 2009

LSS posted a news release on the situation late yesterday which gives some more details about the nature of the cutbacks. Here are the highlights from a family law perspective:

• referrals for mediation are being eliminated and extended services will be scaled back beginning on 31 March 2009
• duty counsel services will be "reduced" at "some courthouses" at some point
• 16% of Lower Mainland staff will be cut, which will result in fewer LawLINE staff and fewer staff lawyers, and the reduction of LawLINE servicefurther changes will be announced in the summer
  

Further changes will be announced in the summer.

2008 In Review, Part 2: Non-Governmental Initiatives

Two of the more important developments in family law in 2008, outside of government-driven legislation and law reform, involved the Spousal Support Advisory Guidelines and the BC Parenting Coordinators Roster.

The Spousal Support Advisory Guidelines

Professors Rollie Thompson and Carol Rogerson released the final version of their paper, Spousal Support Advisory Guidelines, in July, three and a half years after the release of their Draft Proposal.

Frequent browsers of BC Family Law Resource will recall that the Advisory Guidelines describes a few formulas that can be used to calculate how much support should be paid and how long support should be paid for, once someone is found to be entitled to receive spousal support. The courts of British Columbia have embraced the Advisory Guidelines since their draft release in January 2005 with a level of enthusiasm not seen in all other provinces. In fact, our Court of Appeal, in a case called Redpath v. Redpath, made it an appealable error for a trial judge not to consider the result of the Advisory Guidelines when determining a spousal support claim!

The final Advisory Guidelines makes only modest changes from the draft release: the final version emphasizes that "indefinite" awards of spousal support aren't meant to be permanent awards of support; the ways that the formula results can be restructured have been highlighted and the exceptions to the formulas have been clarified and expanded; and, a new formula has been developed to address situations where all of the children receiving child support are adults.

More information about the final Advisory Guidelines paper can be found at www.bcfamilylawresource.com in the Spousal Support > Advisory Guidelines chapter.

The BC Parenting Coordinators Roster

The BC Parenting Coordinators Roster formally launched in September 2007, and awareness of parenting coordination as an alternative to the court process for high conflict couples increased dramatically among judges and lawyers in 2008. A significant number roster members were appointed as parenting coordinators, through agreement and by court order, last year.

The roster is presently in the process of incorporating as a non-profit society, and its inaugural annual general meeting will likely be held in the early spring of 2009.

Up to date information about the roster and the law about parenting coordination as it develops in British Columbia can be found at the roster's website, www.bcparentingcoordinators.com.

Big Love Busted!

The CBC has today reported that Winston Blackmore and James Oler, the rival leaders of the religious community of Bountiful, British Columbia have each been charged with polygamy, an offence under the Criminal Code.

The residents of Bountiful are members of the fundamentalist branch of the Church of Jesus Christ of Latter Day Saints which is notable for, among other things, its continuing adherence to the church's traditional belief in polygamy. (The non-fundamentalist branch had to give up this aspect of its faith in order that Utah could join the United States of America in 1896.) Blackmore is rumoured to have fathered 80 children through his 26 wives.

This is an interesting development in the provincial government's continued obsession with Bountiful, as two of the special prosecutors appointed by the Attorney General's office to investigate polygamy charges over the past couple of years have recommended against charges, and the third has yet to publish his opinion on the matter.

What does the law say?

Section 290(1)(a)(i) of the Criminal Code says that someone commits bigamy if they "being married, [go] through a form of marriage with another person." The punishment for bigamy is set out in s. 291, which defines bigamy as an indictable offence punishable by a maximum jail sentence of five years.

Section 293(1) says that it is an offence to "practise ... any form of polygamy," and that such an offence is indictable and punishable by a maximum jail sentence of five years.

Marriage is defined by s. 2 of the federal Civil Marriage Act as the "union of two persons to the exclusion of all others."

Neither the British Columbia Marriage Act nor the Interpretation Act define "marriage," although one of the requirements of a valid ceremony under s. 9(3) of the Marriage Act is that "both parties to the marriage must be present in person at the ceremony," which sort of implies that marriage is about not more than two people but doesn't expressly say so.

One of the earliest common law definitions comes from the 1866 English case of Hyde v. Hyde and the ruling of Lord Penzance that marriage is defined as "the voluntary union for life of one man and one woman." Believe it or not, this case came in the context of a polygamous marriage celebrated in Utah and the husband's subsequent application in for a divorce. Lord Penzance held that as the marriage was polygamous, it was therefore not a marriage at all and the court did not have the jurisdiction to entertain a divorce proceeding.