31 December 2011

New Child Support Tables in Effect

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

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

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

24 December 2011

Supreme Court of Canada Releases Decisions on Spousal Support

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

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

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

On appeal, the wife argued that the trial judge made a mistake in changing the amount of her support payments without find that there had been a change in circumstances. After s. 17(4.1) of the Divorce Act says this:
"Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration."
The Quebec Court of Appeal held that the although the trial judge didn't expressly mention the change in circumstances, her approach satisfied the requirements of s. 17. However, the court also said that held that the passage of time, accompanied by a failure to become self-sufficient can give rise to the required change of circumstances, and that the absence of a time limitation in the support agreement incorporated into the order could not relieve the payee of her obligation to become self-sufficient; I suspect that this is what lead the Supreme Court of Canada to want to hear the wife's further appeal.

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

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

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

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

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

"[46] The examination of the change in circumstances is exactly the same for an order that does not incorporate a prior spousal support agreement as for one that does.  A general statement that the agreement must be accorded 'significant weight', even though its implications in a concrete case are unclear, in effect raises the threshold necessary to establish a 'material change' under s. 17 when there is an agreement, and emphasizes legal certainty and finality at the expense of the statutory requirements of s. 17. ..."
You can probably guess where this is going. Whether a spousal support obligation is set out in an order or an agreement, to vary the obligation you first must establish that a material change in circumstances has occurred since the order or agreement was made. The nature of the required change varies from couple to couple, but in general the change must be significant and long-lasting.

Applying this test to the facts, the court held that the order ought not have been changed:
"[56] ... instead of determining whether there had been a material change of circumstances, the trial judge conducted a de novo assessment of the wife’s ability to work as if this were an original application for support under s. 15.2. In relying on this assessment to infer a material change of circumstances, the Court of Appeal fell into the same error.

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

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

"[59] Neither does the Divorce Act impose a duty upon ex-spouses to become self-sufficient.  As this Court affirmed in Leskun, the '[f]ailure to achieve self-sufficiency is not breach of ‘a duty’ and is simply one factor amongst others to be taken into account' (para. 27).  Section 15.2(6)(d) of the Divorce Act simply states that the order should 'in so far as practicable, promote the economic self-sufficiency' of the parties."
Supreme Court judgments are rarely as clearly written. In essence, in the majority decision the court has digested the settled law on spousal support but clarified some lingering uncertainty as to whether the test on a variation under s. 17 is the same as the test for an original support order under s. 15.2, and emphasized the critical need to establish a material change when applying to vary an order. If a payor wishes to get out of a support obligation, he should ensure that the original agreement:
  1. has a termination date or at least spells out the circumstances upon which the recipient's entitlement will end;
  2. has a review date or at least sets the circumstances under which a review will be held; or,
  3. requires the recipient to become financially independent.
Using its reasoning in L.M.P., the court concluded that the husband in R.P., another case from the Quebec Court of Appeal, had also failed to establish a change in circumstances justifying the termination of his spousal support obligation. In R.P., however, the change relied on was a change in the husband's financial circumstances.

Summarizing L.M.P., the majority said that:
"[25] Under s. 17(4.1) of the Divorce Act, the moving party must establish that there has been a material change of circumstances since the making of the prior order or variation.  The applicable framework for this case is the one elaborated in the companion decision, L.M.P. To be material, a change must be one which, if known at the time, would likely have resulted in different terms to the existing order.  On an application to vary, the court should consider the terms of the order and the circumstances of the parties at the time the order was made to determine whether a particular change is material.  The existing order is deemed to have been correct and only if the requirements of s. 17 of the Divorce Act are met will there be a variation."
Fair enough. Turning to the nature of the claimed change in circumstances:
"[30] Under s. 17(4.1) of the Divorce Act the husband, as the applicant, had the burden of establishing that there has been a material change in his circumstances since those existing at the time of the 1991 Order.  His argument that as of 2008 he was no longer able to pay support is an insufficient basis to support a finding of material change.

"[31] The record before this Court contains no evidence as to the husband’s financial circumstances at the time of the 1991 Order.  During those proceedings, he challenged the wife’s entitlement to support, not his capacity to pay the amounts she claimed.  Neither the reasons of the courts in those earlier proceedings, nor the record before this Court, contain information as to the husband’s then financial circumstances. ...
"[33] There are two crucial evidentiary gaps, however, in the husband’s financial circumstances. ... These gaps mean that we cannot assess how the husband’s economic circumstances compared to those in 1991. There is therefore no way of measuring whether there is any material change that would entitle him to a variation of spousal support."
Ouch. Without the evidence of the husband's financial circumstances then and now, there would be no way to measure whether the requisite change in circumstances had occurred or not, or if it had occurred, then to gauge the profundity of the change.
"[45] Here the husband could have led evidence capable of establishing his financial circumstances in 1991, but despite the clear requirements of the Divorce Act ... chose not to do so at trial, and failed to provide any explanation for his failure to do so. Absent some adequate explanation as to why no evidence has been adduced with respect to a party’s circumstances at the time of the order, no inference that a material change of circumstances has occurred is available."
At the end of the day, I'm not sure that either of these cases contribute much of any importance to the law on the variation of spousal support orders, at least not to the law as we know it in British Columbia. It may be that the courts of Quebec had lost their way somewhat — the Divorce Act is interpreted with a significant amount of regional variation across Canada — and needed to be put back on track.

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

18 December 2011

Leave Required to Appeal Interim Divorce Act Orders

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

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

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

At present, and for the last several decades, we in British Columbia have proceeded on the basis that interim orders under the federal Divorce Act can be appealed as of right, without the necessity of leave, on the strength of s. 21(1) of the act:
"...an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act"
This was great, because s. 7(2) of the provincial Court of Appeal Act says that you cannot appeal an interim order without getting leave. Because of something called the doctrine of paramountcy, which has to do with how the constitution is interpreted, federal laws beat provincial laws on similar subjects, and if leave isn't required under the Divorce Act it can't be required by the Court of Appeal Act.

This was more or less the situation in Ontario when Mr. Elgner appealed an interim order without first seeking leave:
"[9] Mr. Elgner contends that s. 21(1) of the Divorce Act gives the right of appeal for all orders, interim and final, made under the Divorce Act. As the Divorce Act is federal legislation, he says that right is paramount over s. 19(1)(b) of the Courts of Justice Act [the equivalent of s. 7(2) of our Court of Appeal Act], which requires leave to appeal from interlocutory orders of judges of the Superior Court of Justice."
Unfortunately for Mr. Elgner, the Ontario Court of Appeal read s. 21(1) in light of other provisions of the Divorce Act, s. 21(6):
"Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed."
and s. 25(2):
"Subject to subsection (3), [the provincial government] may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings ...
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act."
In other words, although a plain reading of s. 21(1) suggests that leave isn't required, the Divorce Act expressly authorizes the provinces to make rules about appeals and says that Divorce Act appeals ought to proceed "according to the ordinary procedure governing appeals to the appellate court," and in British Columbia and Ontario leave is required to appeal interim order under the "ordinary procedure" spelled out in Ontario's Courts of Justice Act and BC's Court of Appeal Act.

Back to Elgner for a moment:
"[41] ... by spelling out in s. 21(6) that an appeal under s. 21(1) is to be 'asserted, heard and decided according to the ordinary procedure governing appeals', Parliament dictated that the provincial rules are to be followed when exercising the appeal right given by s. 21(1). As has been noted, s. 19(1) of the CJA was operative when s. 21(6) of the Divorce Act was enacted. It was the 'ordinary procedure' in Ontario for asserting an appeal from an interlocutory order. It can be assumed that Parliament, when enacting s. 21(6), was aware of the ordinary procedure in place in Ontario. It follows that Parliament could have inserted a provision that excluded the leave requirement. It did not. Instead, it chose to cede to the provinces the right to govern the procedure on appeal. ...
"[55] In conclusion, when ss. 21(1) and (6) of the Divorce Act are given their ordinary meaning and read in their entire context, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is clear that the right of appeal given by s. 21(1) is to be exercised in accordance with the ordinary procedures governing appeals of that nature. In Ontario, the ordinary procedure requires leave, if the matter to be appealed is an interlocutory order of a judge of the Superior Court of Justice."
Appeal decisions are rarely written with greater clarity and simplicity. Unfortunately, the reasoning in Elgner is directly applicable to s. 7(2) of our Court of Appeal Act, and the inescapable conclusion, should anyone choose to argue the point, is that leave is required to appeal interim Divorce Act orders in British Columbia. (In fact, I'm already aware of one case where the lawyer has decided to seek leave.)

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

The general test for leave to appeal interim orders is set out in a 1992 decision of our Court of Appeal, Watson v. Imperial Financial Services Ltd. (I've put the important bits in bold):
"(a) The question to be decided on the appeal must be sufficiently important to the particular litigation or of such general importance that the court should hear it.

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

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

"(d) The court will consider whether the order being appealed decided any element in a final way and the effect of such interlocutory order on the parties to the action."
Watson was a civil case involving a bunch of corporations, but the key principles have been adopted in family law cases. This is how the test was put in Thorne v. Thorne, a Court of Appeal decision from 1997:
1. Whether the point on appeal is of significance to the general practice.

2. Whether the point raised is of significance to the action itself.

3. Whether the appeal is prima facie meritorious.

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

However, the court will impose a somewhat higher standard in family law cases than in general civil cases. For example, in Hyggen v. Hyggen, a 1986 Court of Appeal case, the court said:
"...in family matters it is only in the most extreme circumstances that leave to appeal will be granted in respect of interim matters."
and, to a similar effect in a 1998 case called Newson v. Newson:
"It is well settled that leave to appeal from interim orders in family matters should be granted only in extraordinary or, as it has sometimes been put, 'extreme' circumstances."
"Extreme" might be a bit extreme, but the point is that leave will be granted sparingly in family law cases as, I think, it should be. Interim orders are meant to give a measure of rough and ready justice by addressing issues that cannot wait until trial in a speedy, cost-effective manner; requiring a party to obtain leave will help to weed out meretricious appeals and avoid expensive delays.

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

14 December 2011

12 December 2011

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

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

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

Property, unmarried couples and the Family Relations Act

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

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

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

Unmarried couples, trust claims and unjust enrichment

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

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

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

Unmarried couples, cohabitation agreements and the Family Relations Act

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

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

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

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

Unmarried couples and the Family Law Act

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

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

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

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

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

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

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

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

Get a cohabitation agreement and get it soon

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

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

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

09 December 2011

New Blog on Shari'a Law in America

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

03 December 2011

Supreme Court Releases Decision on Agents Appearing in Court

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

The problem arises from s. 15(1) of the Legal Profession Act which says that "no person, other than a practising lawyer, is permitted to engage in the practice of law;" s. 85 of the act makes it an offence, punishable under the Offence Act, to contravene s. 15. The Legal Profession Act offers a few exceptions to this general prohibition:
  • a party to an action may represent him- or herself;
  • any person who is entitled to vote in British Columbia may represent someone if the narrow criteria of the Court Agent Act apply (if there are fewer than two practising lawyers in town or if there are fewer than two lawyers with offices within 8km of the courthouse);
  • a non-lawyer employed by the Legal Services Society may represent someone within the limits of s. 12 of the Legal Services Society Act; and,
  • an articled student may represent someone to the extent permitted by the Law Society.
However, regardless of the Legal Profession Act, the court has the inherent right to control its own process and may, on a case by case basis, allow a non-lawyer to represent someone. That was the issue in Ambrosi when the applicant asked the court for leave for someone to speak on his behalf and present his application.

The judge began his analysis by looking at a 2002 case from the Court of Appeal, R. v. Dick (I've put the important bits in bold):
"[6] The Crown raised a preliminary objection ... and brought to our attention several reasons why [the proposed agent] should not be accorded the privilege of audience. We use the word 'privilege' advisedly, there being clear authority for the proposition that, subject to statutory provisions otherwise, it lies within a court's discretion to permit or not to permit a person who is not a lawyer, to represent a litigant in court. In particular we note the judgment of Lord Denning in Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service et al. ... where it was said that the discretionary power to grant a privilege of audience to other persons should be exercised 'rarely and with caution' ...

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

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

'It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused's right to a fair trial. Other examples where the administration of justice would suffer irreparable harm if an agent were allowed to appear are found in the material filed on this appeal. ... [There may be] situations in which the agent's criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied on to conduct a trial ethically and honourably.'"
To summarize this somewhat:
  1. The court has the discretion to allow an agent to represent a litigant.
  2. This discretion should be exercised with restraint, and should be exercised in bearing in mind the need to ensure that the litigant is well-represented, the rule of law is maintained and the integrity of the court is preserved.
  3. The court should refuse to allow an agent to act when necessary to protect the proper administration of justice. This might be the case where an agent is incompetent or is unlikely to conduct him- or herself in an ethical manner.
Although the applicant presented a number of good reasons why the agent should be allowed to represent him, including the prejudice to his right to a fair hearing, his constitutional right to freedom of expression, his entitlement to appear by an agent of his own choice, and his right to have access to justice, the respondent presented a lengthy body of court decisions reflecting poorly on the proposed agent's past conduct in court. Ultimately, the judge held that:
"[55] I have not been convinced that I should exercise my discretion to allow [the proposed agent] to appear as agent for Mr. Ambrosi. I am satisfied that it would not be in the interest of justice to allow [the proposed agent] to appear as agent. ... I am satisfied that Mr. Ambrosi can afford a lawyer if he wishes, or may even be able to find someone more appropriate to appear as his agent. ..."

29 November 2011

Family Law Act Third Reading Bill Posted

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

26 November 2011

New Child Support Tables for 2012

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

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

The changes are relatively minor. Some payors with incomes below $50,000 per year may see their child support obligations decrease:
$25,000 income
one child = $213 per month ($230 under 2006 tables)
three children = $533 per month ($525 under 2006 tables)
six children = $680 per month ($751 under 2006 tables)

$50,000 income
one child = $458 per month ($465 under 2006 tables)
three children = $998 per month ($994 under 2006 tables)
six children = $1496 per month ($1482 under 2006 tables)
Most payors, however, will see their child support obligations increase:
$75,000 income
one child = $701 per month ($698 under 2006 tables)
three children = $1483 per month ($1459 under 2006 tables)
six children = $2205 per month ($2162 under 2006 tables)

$100,000 income
one child = $921 per month ($906 under 2006 tables)
three children = $1923 per month ($1875 under 2006 tables)
six children = $2848 per month ($2770 under 2006 tables)
The Department has also published a great child support calculator for the new tables. Note that the old tables will remain in force until the new tables take effect at the end of December.

25 November 2011

Family Law Act Receives Royal Assent

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

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

Section 482 of the act sets out a table showing which parts of the act are in force now, and which will come into effect later on. Effective immediately:
  • Family Relations Act, s. 90 (parental support) is repealed
  • Family Relations Act, s. 120.1 (property agreements of unmarried parties) is repealed
  • Land (Spouse Protection) Act, ss. 1, 3, 5 and 6 are amended to make the act apply to persons who have cohabited in marriage-like relationship for at least two years
  • Property Transfer Tax Act, s. 1 is amended to make the act apply to persons who have cohabited in marriage-like relationship for at least two years
  • Evidence Act, ss. 6, 7 and 8 are amended to make "spouses" competent witnesses, not just husbands and wives

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

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

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


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

24 November 2011

Supreme Court Releases Decision in Polygamy Reference

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

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

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

"[1360] For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to persons who marry into polygamy before the age of 18 but are 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age."
To cure this minor defect, the Chief elected to limit the meaning of s. 293 to exclude its application to minors between 12 and 17 years of age:
"[1362] ... I would read down 'every one' in s. 293 to exclude the noted group of potential accused persons."
The Chief distilled the evidence presented and reasons for his conclusion in the introduction to his judgment:
"[5] I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.

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

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

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

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

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

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

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

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

"[14] Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists."
On the secondary question, the Attorney General's request for the court to determine the elements of the conduct s. 293 seeks to prohibit, the Chief held that:
"[1363] ... [T]he elements of the polygamy offence (s. 293(1)(a)(i)) and those of the conjugal union offence (s. 293(1)(a)(ii)) are the same:
  1. an identified person, who
  2. with the intent to do so,
  3. practices, enters into, or in any manner agrees or consents to practice or enter into,
  4. a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.
"[1364] Section 293 does not require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence."
This should be of assistance in any future attempt to prosecute a charge of polygamy.

This decision also offers helpful definitions of legal terminology in relation to marriage which I suspect will be of interest to readers of this blog, in particular the anonymous commentator who believes that British Columbia's legislation sanctions polygamy by allowing married persons who are not yet divorced to enter into unmarried common-law "spousal" relationships (see the comments to this post for further discussion of this point):
"[135] Polygamy is an umbrella term that refers to the state of having more than one spouse at the same time. It includes both polygyny and polyandry. Polygyny is the practice of a male having multiple female spouses. Polyandry is the converse, a female with multiple male spouses. ...

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

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

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

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

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

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

21 November 2011

A Reply to the Times Colonist

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

Here's the Colonist's editorial verbatim, without a word missing, in red with my comments following.
"A case can be made that the new Family Law Act, tabled Monday in the legislature, is the most far reaching social reform of our era. The massive bill completely redefines the civil structures that underpin marriage and family life."
This legislation certainly is an exercise in social policy. However, it doesn't "completely redefine" the civil structures that underpin marriage and family life; it redesigns property laws from a model shared with some of the maritime provinces to a model shared with Alberta and Ontario, and extends property rights from married couples to unmarried couples who have cohabited for at least two years. It doesn't change our recognition of unmarried spousal and parental relationships, and it doesn't change the law on child support or spousal support.
"It also rewrites the statute book. Close to 100 separate acts are being amended to accommodate the changes involved."
Most of the changes update references to "husband and wife" to "spouse" and "mother or father" to "parent" and are barely worth notice. More significant changes are only being made to the Commercial Arbitration Act, the Infants Act, the Child, Family and Community Service Act and the Vital Statistics Act, but the changes don't rewrite the basic scheme of these acts, they just accommodate them to the changes in the Family Law Act.
"In outlining the package, Attorney-General Shirley Bond has stressed two broad themes.

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

"And there is a strong emphasis on mediation, rather than lawsuits, to settle divorce proceedings. These are valuable reforms, and the government is to be commended for them."
These are indeed the themes the Attorney General has chosen to emphasize. They're hardly the only important changes, they're just the ones that would fit into a sound bite for the evening news.
"The move toward mediation in particular is long overdue. Family quarrels currently occupy a quarter of all the court time in B.C. Anything that discourages divisive and wasteful litigation should be welcomed."
Actually, the move toward mediation has been underway for a couple of decades now and is hardly overdue. Mandatory mediation has been a feature of the Supreme Court civil system since 2001 and optional mediation has been available from family justice counsellors in the Provincial Court since 2003, never mind the judicial mediation offered at judicial case conferences and family case conferences.
"But important as these changes are, they are trivial compared with some real bombshells in the legislation. There are three to note:

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

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

"But the new act eliminates this provision entirely. In future, property acquired prior to a marriage can be excluded if the spouse who owned it wishes. That sounds more like a Hollywood prenuptial agreement than a contract of marriage."
As I've mentioned, the current system for property division is shared by only a few other provinces. Most of Canada deals with property division on the Alberta and Ontario models which split property acquired after marriage equally and share in the growth in value of assets brought into the marriage; many people find this system of property sharing more intuitively appropriate than the current system.

The real "emancipating forces" which equalized women's property rights were the Married Women's Property Acts of the eighteenth, nineteenth and early twentieth centuries which gradually gave married women equal property rights with their unmarried sisters, and eventually equal property rights with their husbands... but this all happened long before the Family Relations Acts of 1972 and 1978. Or the Family Law Act of 2011, for that matter.
"- The act extends the division of property to common-law arrangements. Presently, couples who do not wish to marry can live together without merging their finances.

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

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

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

"This will simply back up the court system even further, as the full force of law comes down on thousands of casual arrangements."
This too is an issue of social policy. Under the current law, unmarried spouses are excluded from the parts of the Family Relations Act that divide property between married couples. Under the existing regime, unless a couple own property together, an unmarried spouse gets nothing, no matter if the couple has been together for two years, five years or twenty.

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

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

The Colonist is right to observe that there is an element of unfairness to this for couples in existing unmarried spousal relationships. That is, however, the nature of legislative change; either it happens and hurts some people now or it never happens and hurts a lot more people as an injustice is perpetuated. Couples who wish to avoid the effect of the new act are best advised to get it together and make a property agreement now, before the new law takes legal effect.
"- While this omnibus bill deals with nearly every conceivable aspect of family law, there is one it ignores. There are no provisions to address the unequal treatment of fathers.

"It's well known that separation proceedings tilt against men when it comes to awarding child custody. In disputed cases, only 10 per cent of fathers are successful."
This is unmitigated and egregious hooey. This argument rests on an unproven allegation that fathers are treated unequally and ignores the fact that orders for joint custody have become the unwritten rule and presumptive starting point over the last fifteen years. More separated couples have joint custody of their children now than at any point in recorded legal history.
"The minister might believe her legislation deals with this concern by encouraging judges to ignore parental interests and focus on the children. But experience shows that the bias against fathers is deeply rooted in our family law system.

"In a statute several years in the drafting, this inequity should have been dealt with."
The Colonist cites no authority for this sweeping condemnation of the justice system. Surely before dropping its institutional weight behind such an allegation, the paper could point to some objective support for such a profound contention? I'm positive that such an august paper wouldn't base an unsigned editorial on mere rumour and carping innuendo.
"These are all issues upon which reasonable people can disagree. Yet there are huge issues at stake.

"Marriage is the most important wealth-creating and wealth-diffusing institution in modern society. As it stands, the new act weakens that feature of marriage, even as it foists unwanted obligations on short-term relationships."
If I understand this argument, the Colonist claims that the new legislation weakens the "wealth-creating" and "wealth-diffusing" qualities of marriage. I have no idea what this means, however if the point is that marriage is inherently wealth-creating, surely this feature is shared with the ever-increasing numbers of long-term, unmarried spousal relationships? What is it exactly which makes an unmarried spousal relationship less economically valuable than a married relationship?

The Colonist is also off base in assuming that unmarried relationships are inherently "short-term." Many of these relationships are just as long, if not longer, than married relationships, and many involve a degree of financial enmeshment that is no less significant for the fact that they are unsolemnized.
"Both parties in the legislature have agreed to pass the bill in just a few days, virtually sight unseen. That would be a serious disservice.

"Such immense changes require a full airing. The government should put this over to the new year, and allow for a proper debate."
As a matter of fact, the Attorney General's office has taken enormous pains since 2006 to expose this legislation to public comment. It is not the case that this bill emerged one morning like mushrooms after the rain; there have been extensive public consultations, with various public groups as well as with the bench and bar. This legislation is hardly a rush job, it has been five years in the making.

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

Update: 22 November 2011

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

20 November 2011

Decision on Role of Illegal Conduct in Family Law Cases

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

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

At the time of trial, the husband was 69 and the wife was 55. They had been together since the wife was in her late teens and had married in 1981, but were separated for 16 years by the time the husband's claims for spousal support and certain orders relating to property were heard. This is how the judge summarized the peculiar nature of the case:
"[3] The claims which are advanced by the parties are not, in concept, unusual. The circumstances which underlie these claims, however, are extraordinary. ... Both parties have repeatedly and on an ongoing basis, including in recent years, jointly engaged in various forms of wrongful activity. Their three children have participated in some of these forms of illicit or wrongful conduct. Several of the witnesses who appeared before me unabashedly acknowledged their involvement in earlier activity that was either criminal or fraudulent."
The parties' separate criminal careers, as summarized by the judge, are astonishing for their breadth and manifest disregard for the law; the problem this caused at trial was the judge's inability to accept the testimony of either of them. At the end of the day, however, the truthfulness of the parties was eclipsed by yet another problem:

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

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

The judge then summarized the law on the issue (I've put the important bits in bold):
  • Hall v. Hebert, 1993 Supreme Court of Canada: "The power expressed in the maxim ... finds its roots in the insistence of the courts that the judicial process not be used for abusive, illegal purposes."
  • British Columbia v. Zastowny, 2008 Supreme Court of Canada: "The following principles and approach are established in Hall v. Hebert and are applicable in the present case. 1) Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort. 2) ... its application must be ... made subject to clear limits and should occur 'in very limited circumstances'. 3) The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law."
  • Randhawa v. 420413 B.C. Ltd., 2007 BC Court of Appeal: The maxim "applies in contract and in tort to maintain the internal consistency of the law ... The justification for the rule is the preservation of the integrity of the legal system; it should be applied sparingly. ... [I]t is not necessary to plead the doctrine. It is a question of law. It is necessary to plead the material facts to support the application of the doctrine."
These cases all deal with ex turpi causa in the context of contracts and torts. In Daemor, however, some of property claims were based in statute and others in the law of trusts. The judge continued:
  • BMF Trading v. Abraxis Holdings Ltd., 2002 BC Supreme Court: "The modern doctrine of constructive trust, which has been created to remedy injustice to innocent or vulnerable parties, is not a device to be utilized by sophisticated business people caught in the web of their own intrigue. Constructive trusts are not to be used as a reward to parties who have gained advantages by denying legal ownership of an asset, only then to assert ownership when it suits them at a later date. This court must not facilitate such manipulation."
  • Stoneman v. Gladman, 2005 Ontario Superior Court of Justice: "The trustee’s disinterest does not confer legal capacity on the plaintiffs, and unlike the trustee, they remain tainted by their professed acknowledgment that the scheme that they seek to have enforced is dishonourable and illegal."
  • J.T.L. v. R.G.L., 2010 BC Supreme Court: "Ex turpi causa is concerned not specifically with the lawfulness of contracts, but generally with the enforcement of rights by the courts. The courts will not enforce a right, which would otherwise be enforceable, if the right arises out of an act committed by the person asserting the right which is sufficiently anti-social to justify courts refusing to enforce that right. ... The purpose of the ex turpi causa rule is to defend the integrity of the legal system and the repute in which courts ought to be held by law-abiding members of the community."
Having thus established that ex turpi causa is a principle of general application available to the court whenever the integrity of the justice system is imperiled, the judge observed that:
"[77] ... The unlawful conduct of Mr. Daemore and Ms. Von Windheim is flagrant and pervasive. It arises not as a matter of inference, but is unequivocally acknowledged. Importantly, such illegality is central to many of the claims being advanced."
And further:
"[118] Here, the evidence of both parties is unreliable. There are also few proven facts from which I can make or draw appropriate inferences. Any such exercise would be wholly speculative. As a result, I do not consider that there is any principled basis for me to conclude that either party holds any specific additional property or to fix the value of any further family assets. If any unfairness results to the parties ... they have only themselves to blame."
Ultimately, the court dismissed the husband's claim for spousal support and certain orders based on the law of trusts; dismissed the wife's claim for child support but entirely reapportioned to her the properties she had been solely responsible for maintaining over the parties' lengthy separation.

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

18 November 2011

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

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

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

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

Apart from some minor housekeeping changing references to "husband and wife" to "spouse," the provisions coming into effect right away will:
  • make the Land (Spouse Protection) Act available to unmarried spouses,
  • repeal the provisions of the Family Relations Act for parental support (s. 90), and
  • repeal other provisions relating to the effect of property agreements between unmarried couples (s. 120.1).

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

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

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

My thanks again to Nate for pointing this out.

14 November 2011

Family Law Act Introduced!

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

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

A new emphasis on out-of-court resolution

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

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

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

A child-focused approach to parenting after separation

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

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

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

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

A new approach to the best interests of children

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

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

Planning for a parent's incapacity

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

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

Managing children's property

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

At last, some rules about moving with a child!

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

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

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

New rules about assisted reproduction

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

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

Prioritizing child support obligations

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

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

Independent children under the age of majority

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

An expanded definition of "spouse" for spousal support

"Spouses" are entitled to apply for spousal support. Spouse, for the purposes of spousal support applications, includes:
  1. people who are married or who used to be married;
  2. unmarried people who have lived together in marriage-like relationships for more than two years; and,
  3. unmarried people who have lived together for less than two years but have had a child together.
Married spouses must apply for spousal support under the new act within two years of divorce or the annulment of their marriage. Unmarried spouses must apply within two years of the date of their separation.

Harmonizing spousal support with the Divorce Act

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

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

A limited revival of misconduct

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

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

Reviewable arrangements for spousal support

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

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

Making support obligations binding on a payor's estate

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

A new, more intuitive scheme for property division

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

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

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

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

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

Allocating responsibility for debts

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

Addressing family violence

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

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

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

Better management of court processes

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

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

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

What else is going on?

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

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

A few final, but still preliminary, thoughts

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

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

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

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

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

Update: 15 November 2011

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

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