23 February 2009

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."

18 February 2009

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.

08 February 2009

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.

07 February 2009

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.