New Practice Directions Released

Practice directions are instructions issued by the Chief Justice of a court for the guidance of lawyers and litigants appearing before the court. Practice directions are normally intended to address small matters not dealt with by the court's rules or to clarify the proper interpretation of the rules.

The Supreme Court has released a new set of practice directions for the new Supreme Court Civil Rules and Supreme Court Family Rules, available at www.courts.gov.bc.ca/supreme_court/practice_and_procedure/. The new practice directions replace all of the current directions and will take effect with the new rules, on 1 July 2010.

Commission on Legal Aid Launched

CBC today reports that a group of non-governmental organizations has banded together to launch a commission on the sorry state of legal aid in British Columbia, with the object of reporting their findings to the provincial government. The organizations involved in the project include the Canadian Bar Association British Columbia and the Law Society; good for them for doing this.

I've discussed the decline and fall of legal aid more than once. To read more of my natterings, click on the "legal aid" label below. Read CBC's story by clicking here.

New Court Forms Posted

Templates for the new court forms under the Supreme Court Family Rules are now available for download on my website, along with samples of what the forms ought to look like when they're filled out. In The Legal System > Starting an Action, in the downloads segment, you'll find:

• Form F3: Notice of Family Claim
• Form F8: Financial Statement
• Form F19: Notice of Judicial Case Conference

In The Legal System > Defending an Action, you'll find:

• Form F4: Response to Family Claim
• Form F5: Counterclaim

In The Legal System > Interim Applications (you'll need to scroll down a fair bit), you'll find:

• Form 31: Notice of Application
• Form 32: Application Response

In Marriage & Divorce > Divorce, you'll find the complete suite of forms required for the do-it-yourself divorce process:

• Form F1: Joint Notice of Family Claim
• Form F3: Notice of Family Claim
• Form F15: Affidavit of Personal Service
• Form F35: Requisition for divorce order
• Form F17: Requisition to search for a defence
• Form F36: Registrar's Certificate
• Form F38: Divorce Affidavit
• Form F37: Child Support Affidavit
• Form F52: Divorce Order
• Form F56: Divorce Certificate

Other form templates will be posted in the Resources & Links section when I can get to them.

Update: 22 April 2012

See my post "New Court Form Templates Posted" for a list of the Supreme Court family law forms amended as of 25 April 2012, and links to my templates for those forms.

Consolidated Rules Now Available from Queen's Printer

The complete text of the new Supreme Court Family Rules and court forms is now available on the website of the Queen's Printer at www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_01. This text incorporates the changes made in the 5 May 2010 Order in Council.

To read past posts about the new rules, click the "court rules" label below.

CBC Reports on Fraudulent Marriage

CBC has reported today on the case of a Victoria woman who says that her husband duped her into marrying him just so he could immigrate to Canada. Although people enter into sham marriages all the time, it is always tragic when the sham is known only to one of the spouses.

When an innocent spouse has suffered real harm as a result of the deception, however, the court is usually happy to try to redress those wrongs. In the case of Raju v. Kumar, for example, a 2006 case of our Supreme Court, the court awarded damages to compensate the innocent spouse for her

"hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children"

as a result of the husband's misrepresentations which induced her to marry him.

Custody and Guardianship

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.

At one spot in my website, I say this:

"Because of certain complicated legal principles involving things like the doctrine of paramountcy, the following combinations of custody and guardianship are available:

1. joint custody and joint guardianship;
2. sole custody and joint guardianship; and,
3. sole custody and sole guardianship.

It is not possible for the parties to have joint custody while one parent is the child's sole guardian."

My off-hand reference to "complicated legal principles" has proven unsatisfactory to many, including a lot of lawyers. Let me explain.

Custody

At one point, in 1857 to be exact, the law only talked about the children of separated parents in terms of custody and access. The first law on divorce, the English Divorce and Matrimonial Causes Act, disposed of the care and control of children in one short paragraph about custody and access... unlike today's Divorce Act and Family Relations Act, which seem to spend pages on the subject.

The Divorce and Matrimonial Causes Act was just one of the English laws that were brought into the Colony of British Columbia in 1858 by the proclamation of Governor Sir James Douglas. Since British Columbia didn't join Canada until after Confederation in 1867, British Columbia managed to keep its own Divorce and Matrimonial Causes Act on the books for another hundred years, despite the division of powers in ss. 91 and 92 of the Constitution Act which assigns the power to legislate on divorce exclusively to the federal government.

Canada received the English law as well of course, and it remains on the books today, although much amended, as the Divorce Act. The Divorce Act still only talks about custody and access.

Guardianship

British Columbia first passed a law on guardianship in the late 1880s, in the Apprentices and Minors Act. That law dealt with the obligations masters had to provide the necessities of life to the apprentices in their charge. Essentially, it talked about the parent-like rights and obligations masters had in respect of the minor children who were their apprentices.

(To be clear, guardianship had been known to the common law for hundreds of years. This was the first piece of legislation on the subject.)

If the clock was stopped here, things would've been fairly clear. Custody would mean the parental rights and obligations exercised by parents and guardianship would mean the parent-like rights and obligations exercised by people who aren't parents.

Guardianship crept into the family law arena however when the provisions of the Apprentices and Minors Act were moved into the Infants Act, which mostly had to do with children's ability to enter into binding contracts, and later into the Equal Guardianship of Infants Act. (The "equal" in the title of this last act meant that women could apply for guardianship as well as men.)

The Family Relations Act

Things got a bit confused in British Columbia when the provincial government passed the Family Relations Act in 1972. The new act bundled together a bunch of provincial legislation on different family law issues in one convenient package, repealing the provincial Divorce and Matrimonial Causes Act along the way, and stuck the rules about custody right beside the rules about guardianship. The problem, from a lawyer's perspective at least, is that the new law didn't distinguish between custody and guardianship, much less explain them, and said that "any person," not just parents, could apply for custody and guardianship.

In order to accommodate the Divorce Act, however, s. 27(4) of the Family Relations Act provides that a Divorce Act order for custody is deemed to include an order for guardianship.

The Doctrine of Paramountcy

This is a constitutional principle which says that where the federal government and a provincial government have both passed a law on the same subject, the federal government's law takes priority and the provincial law is invalid to the extent that it is inconsistent with the federal law. This comes into our discussion because both the federal government and the provincial government have passed laws about custody, although only the province has a law about guardianship.

Summary and Conclusion

The meaning of "custody" under the Divorce Act contains everything that has to do with the care and control of children following separation. This must be the case because the Divorce Act only talks about custody, and "custody" must therefore be exhaustive of parents' rights and obligations in respect of their children following separation. A Divorce Act order for custody must include whatever a Family Relations Act order about guardianship means; to put it another way, guardianship and custody under the Family Relations Act can't together mean anything more than what is meant by custody under the Divorce Act.

The provincial government might decide to divide parental rights and obligations into custody and guardianship if it wishes, but however the province chooses to divide these rights and obligations, an order for custody under the federal Divorce Act says it all... and it says it all ultimately because of the doctrine of paramountcy. The Divorce Act wins. Whatever guardianship might mean, it must be included within the Divorce Act's idea of custody.

As a result of all this, you can't have an order for joint custody along with an order that gives sole guardianship to one of those parents; joint custody must include joint guardianship, and even if it didn't, assigning sole guardianship to one parent would violate the paramountcy doctrine by allowing a provincial law, the law that talks about guardianship, to step over a federal law, the law that only talks about custody. (Things might be better if the orders were made only under the Family Relations Act since the paramountcy doctrine wouldn't be invoked, but you'd still run into the problem of guardianship's subordination within the larger concept of custody.)

I hope this clears things up a bit.

Website Begins Integration of New Rules

I've begun integrating the Supreme Court Family Rules into the main text of my website, starting in the section "The Legal System," and drafting new demonstration documents to replace the old ones. Sample forms available so far include:

1. Notice of Family Claim (Form F3);
   
2. Response to Family Claim (Form F4);
   
3. Counterclaim (Form F5);
4. Notice of Application (Form F31);
5. Application Response (Form F32);
6. Financial Statement (Form F8); and,
7. Notice of Judicial Case Conference (Form F19).

The chapter "The Legal System > Interim Applications" features a lengthy discussion of the new application process and charts illustrating the timelines required by Rule 10-6.

Free Access to New Rules from Quickscribe

The nice people at Quickscribe Services Ltd have kindly offered my readers unlimited, free access to their legislation database resource for the rest of this month until the new rules come into effect on 1 July 2010.

Quickscribe maintains a comprehensive and current database of provincial legislation and regulations, and consolidates and posts amendments to their website long before they're available through the Queen's Printer. Quickscribe offers up-to-date access to provincial bills and orders in council, and tracks the amendment history of every act.

To take advantage of Quickscribe's offer, go to the login page at http://www.quickscribe.bc.ca/login.html and enter the username [offer expired] and the password [offer expired]. You won't need to cough up any personal information at all.

To locate the new rules, enter "supreme court family rules" in the Find Act/Regulation box and click GO.