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.

Best of Random Answers

Long-term users of my website will recall the surprisingly popular feature "Random Answers to Random Search Terms" which disappeared during the website's recent renovations. Random Answers had it origins in the odd, and sometimes downright bizarre, search terms which somehow managed to find my website and raised questions that I sometimes decided to answer. Here are a selection of some of my personal favourites.

>> how to get caught marrying during divorce waiting period
>> how soon after the divorce can you remarry
>> is divorce morally wrong

These seemed related, so I thought I'd answer them all at once.

Canadian divorce orders take effect thirty days after the date they are pronounced. (The delay is to allow the period in which the order can be appealed to expire.) Once the order takes effect, you can remarry.

If you want to get caught remarrying inside the appeal period - which seems like a bad idea to me — tell the judge who made the divorce order. Otherwise the odds are very good you won't get caught.

Neither the courts nor the Vital Statistics Agency polices divorce orders to make sure no one remarries within the appeal period. In fact, the Vital Statistics Agency won't even check to make sure you're not already married to someone else when they issue you your marriage licence.

To be blunt, the only person who might care that you've remarried within the appeal period is your new spouse, since your marriage to him or her is technically void.

Is divorce immoral? The Pope and I take differing views on this, and he's stopped returning my calls. Most religions, even the orthodox variety, condone divorce. Divorce is discussed with approval in the Koran, Jews can get a divorce through a special rabbinical tribunal, and most Christian faiths are all over separation and divorce, except for the focus-on-the-family evangelical types and hardcore Catholics, and I respect their views on the matter as well.

At the end of the day, regardless of your religious persuasion, comes the blistering truth: is it moral to remain trapped in a loveless relationship until the day you die, forsaking any chance of finding happiness and self-actualization, all for the sake of antiquated notions about the sanctity of marriage that were developed at a time when most people died before their 35th birthday?

>> scool problm in children in divorce family

Frankly, I'm not surprised.

Seriously, though, separation is often as traumatic for children as it is for their parents. Younger children generally do not understand what is happening, and their anxiety at home often shows up at school and reflects in their homework.

Children react particularly poorly when they are exposed to the conflict between the parents, when the parents use them as pawns in their own battles, and where the parents openly fight in front of the children. Children will feel especially anxious when no one bothers to explain to them what's going on, and will sometimes make up their own stories about why the parents no longer live together, including the belief that the break up is their fault. As you can imagine, stories like these are not particularly healthy and can seriously damage a child's self-esteem.

What can you do about this? Here are some ideas:

• The children must be told, by both parents, that each parent still loves the children and will always love the children.
• The children must not be made to feel bad for loving or missing the other parent and saying so.
• The children should be told that the separation is not their fault, and perhaps that the separation is a problem between the parents and isn't about the children.
• Each parent must maintain a positive a nurturing home for the children, and make their time with the children as "normal" as possible. That includes doing homework and talking about the children's days at school, and everything else the parents used to do with the children when they were together.
• The children must not be used to carry messages between the parents' homes, unless the messages are written down.
• The children should not be grilled about what they've done with the other parent. "Did you have a nice time?" should do it.
• The parents must not blame the other parent to the children. Each parent should make a point of speaking positively about the other parent to the children.

I suppose there's really no guaranteed solution or a solution that's particularly easy. Parenting after separation is hard work, but everything that can be done to make the children feel safe, stable and loved should be done and must be done. Even if it means choking on your pride.

>> what are the pros and cons of arranged marriages

Wow, where to begin.

Arranged marriages are fairly common in certain Asian, East Asian and African traditional cultures. Perhaps it is a coincidence, but the same cultures generally see women as inherently inferior to men and wives are usually subjugated to their husbands' wishes and authority.

One would expect these charmingly antique but very sexist values to attach to contemporary arranged marriages, perhaps not between the couple themselves but definitely to the extended families' expectations of the marriage and the wife's role in the marriage.

Arranged marriages also recall a lot of old western attitudes to marriage. Prior to, say, the 20th century, marriage was a financial endeavour. Wives sacrificed their property and their ability to conduct business independent of their husbands in exchange for a legal entitlement to be supported by their husbands. Husbands, on the other hand, took their wives' property and earnings, and received the benefits of a full-time nanny, cook, housekeeper and womb, in exchange for an obligation to provide their wives with often paltry "necessities of life."

Returning to the search term, then, I suppose that the biggest "cons" have to do with the notion of choice and the ability to marry for love rather than for a social or cultural obligation.

It really all depends on how you see marriage. If you don't see marriage as that sort of social obligation, but see it as freely choosing to enter into a life-long partnership with someone you love and respect, then an arranged marriage probably isn't the right plan. Hoping to "learn to love" an obligatory spouse is really rather optimistic, and the marriage comes with no guarantees at all.

To summarize the "cons" of arranged marriages, then:

• new spouse may be unbearable and have disgusting personal habits that you don't know about
• spouse's extended family may be similarly loathsome
• spouse's family will have traditional expectations of your role in the marriage
• being stuck with the new spouse, and his or her family members, forever (theoretically at least)
• spouse's commitment to the marriage will likely be based on traditional values rather than on love and respect
• increased likelihood of disrespect, and therefore increased likelihood of emotional, verbal and physical abuse
• absence of choice in selecting new spouse

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