Supreme Court Releases Decision on Foreign Divorces, Foreign Agreements and Effect of Foreign Law

The Supreme Court of British Columbia has just released its judgment in Sangi v. Sangi, a complex but important case which surveys the rules about when the courts of this province will recognize foreign divorces, how the court should evaluate the fairness of separation agreements negotiated under the laws of another country, and how the court should interpret and/or apply the laws of another country, along with a host of other matters such as:

• determining the credibility of a witness
• the drawing of adverse inferences following a party's failure present a witness to give evidence on an issue
• defending against a foreign judgment on the basis of fraud occurring in the foreign jurisdiction
• determining the authenticity of the records of a foreign court
• measuring whether a foreign agreement is unconscionable or unfair against domestic values and standards
  

This decision is very well written and provides an eloquent statement of the law in this area, and I would do it a disservice if I tried to summarize it further. Suffice it to say that if you have a legal problem in these areas, this decision is well worth your time to read.

Legislature Resumes Sitting

After a modest delay (since June 2010, I believe) the provincial Legislative Assembly has resumed sitting, as the 3rd Session of the 39th Parliament.

Judging by the media coverage, like this article from the Victoria Times Colonist, discussion about the HST referendum will occupy a significant amount of the legislature's time. There's something else to look out for, however... the bill which introduces a new Family Law Act, the legislation suggested in last summer's white paper. If the Family Relations Act is going to be replaced, it's going to be replaced in this legislative session before matters relating to the next election begin to preoccupy government and the opposition.

Check out the first reading section of the legislature's webpage for the proceedings of the current legislative session to keep yourself up to date, at www.leg.bc.ca/39th3rd/1st_read/index.htm. You're looking for a government bill called "An Act to Amend the Law Relating to Domestic Relations" or "An Act to Amend the Family Relations Act," or something else along those lines.

For more information about the white paper, click on the "White Paper" label below.

Acroynms and Abbreviations Explained

Here's a brief guide to some common legal acronyms and abbreviations used in family law matters.

A.C.J.: short for "Associate Chief Justice" in the superior courts or "Associate Chief Judge" in the Provincial Court

A.G.: the Attorney General

A.N.: Administrative Notice, a procedural advisory to be read with the Supreme Court Family Rules

B.C.C.A.: the British Columbia Court of Appeal

B.C.P.C.: the British Columbia Provincial Court

B.C.S.C.: the British Columbia Supreme Court

c.: short for "chapter"

C.F.C.S.A.: the Child, Family and Community Services Act

C.J.: short for "Chief Justice" in the superior courts or "Chief Judge" in the Provincial Court

C.R.A.: the Canada Revenue Agency

C.S.G.: the Child Support Guidelines, also referred to as "the Guidelines"

D.A.: the Divorce Act

de minimus: short for "de minimus non curat lex," a Latin phrase meaning that the law does not concern itself with trifles

df.: short for "defendant," or "respondent" under the new rules; also represented as Δ

et al.: short for "et alii" (masculine) or "et alia" (feminine), a Latin phrase meaning "and others"

F.M.E.P.: the Family Maintenance Enforcement Program, the provincial program that enforces child support and spousal support obligations

F.M.P.: the Family Maintenance Program, the provincial program that obtains child support and spousal support orders on behalf of persons receiving social assistance

F.P.D.: Family Practice Direction, a procedural advisory to be read with the Supreme Court Family Rules

F.R.A.: the Family Relations Act

Hon.: short for "Honourable"

J.: short for "Justice," JJ. is the plural form and means "Justices"

L.O.L.: Lawyer on Ledge

M.A.G.: the Ministry of the Attorney General

M.C.F.D.: the Ministry for Children and Family Development

O.I.C.: Order in Council

p.: short for "page," pp. is the plural form and means "pages"

para.: short for "paragraph," paras. is the plural form and means "paragraphs;" also represented as ¶ and ¶¶

P.C.F.R.: the Provincial Court (Family) Rules

P.D.: civil Practice Direction, a procedural advisory sometimes to be read with the Supreme Court Family Rules

pl.: short for "plaintiff," or "claimant" under the new rules; also represented as π

Q.C.: Queen's Counsel

reg.: short for "regulation"

R.S.B.C.: the Revised Statutes of British Columbia, refers to a consolidated collection of the current provincial laws

R.S.C.: the Revised Statutes of Canada, refers to a consolidated collection of the current federal laws

s.: short for "section," ss. is the plural form and means "sections" (s-s. means "subsection"); also represented as § and §§

S.B.C.: Statute of British Columbia

S.C.: Statute of Canada

S.C.C.: the Supreme Court of Canada

S.C.F.R.: the Supreme Court Family Rules

S.S.A.G.: the Spousal Support Advisory Guidelines, also referred to as "the Advisory Guidelines"

Supp.: short for "supplement"

v.: short for "versus"

Here's how you read references to legislation:

Family Relations Act, R.S.B.C. 1996, c. 128, s. 35(2)

The law is the Family Relations Act, which is chapter 128 of the 1996 consolidated Revised Statutes of British Columbia, and the part of the law specifically referred to is subsection 2 of section 35. Here's another example:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1, 16 and 17

The law is the Divorce Act, which is found in the second supplement to chapter 3 of the 1985 consolidated Revised Statutes of Canada, and the sections referred to are section 15.1, section 16 and section 17. This next example is too recent to belong to a Revised Statutes consolidation:

Civil Marriage Act, S.C. 2005, c. 33

The law is the Civil Marriage Act, which is chapter 33 of the federal laws passed in 2005.

Here's how you read references to newer court decisions:

Smith v. Jones, 2011 BCSC 345

This case is the case of Smith, the claimant, versus Jones, the respondent, and is the 345th decision of the BC Supreme Court released in 2011.

Plain-language definitions for several hundred common legal words and phrases are available in my website. If there any acronyms and abbreviations you'd like me to explain, please say so in a comment to this post.

Law Week Wraps Up Saturday With Free Legal Advice

Law Week, the Canadian Bar Association's annual celebration of the signing of the Canadian Charter of Rights and Freedoms, wraps up on Saturday 16 April 2011 with Dial-a-Lawyer Day. Call between 10am and 2pm to speak to a lawyer for free legal advice at the following numbers:

• Family Law: 1-855-326-4529
• Employment and Labour Law: 1-855-367-5529
• General Law (English language): 604-687-3221 or 1-800-663-1919
• General Law (Chinese language): 604-687-3404 or 1-888-687-3404

I'll be one of the lawyers on the line; feel free to call and say hi.

Court of Appeal Releases Decision on Capacity

On Friday, the Court of Appeal released its decision in Wolfman-Stotland v. Stotland, a case about the mental capacity required to obtain a declaration of irreconcilability. There have been a number of cases like this over the last few years, and I expect that as our population ages, cases on other elder law issues will become increasingly commonplace.

In Wolfman-Stotland, the parties were both in their 90s and each had lived in a separate assisted living facility for several years before the wife commenced proceedings in June 2010. In October 2010, counsel for the wife applied for a declaration, under s. 57 of the Family Relations Act, that the parties had no reasonable prospect of reconciling with one another. Although this declaration is really about protecting property and has nothing to do with separation or qualifying for a divorce, it nevertheless requires to the court to make a conclusion about the wife's intention to end the marriage and therefore about her capacity to form such an intention. The court summarized the issue with this quote from Mental Disability and the Law in Canada by Gerald Robertson:

"Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention."

After discussing the evidence on this point, particular that of a mental health expert, the court cited with approval the discussion of capacity set out in a 1997 case out of Ontario called Calvert v. Calvert:

"Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.

"The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend ...

"There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will ... While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce."

It has always been curious in my view that the mental capacity to enter a marriage should be so low compared to the mental capacity required to leave a marriage; doubtless this is a result of the social and religious stigmata formerly associated with divorce. In any event, on the strength of the expert's conclusion that the wife had the mental capacity to instruct counsel on the financial aspects of the parties' divorce, the court of appeal concluded that the wife also had the capacity to "to form the intention to live separate and apart" and therefore also the capacity to apply for the s. 57 declaration.

Another good case on a related issue is the Supreme Court's 2005 decision in M.K.O. v. M.E.C., which involved the capacity of a party to apply for a divorce where the divorce action is commenced by the party's litigation guardian. This decision is very well written and worth a read. More information about s. 57 declarations can be found in an older post, "The Ins and Outs of Separation."

Jurisdictional Disputes in the Supreme Court

I was reminded yesterday of the interesting provisions the new Supreme Court Family Rules make for challenging the court's jurisdiction over a claim or a person, or the adequacy of service. Here's a summary.

Under Rule 18-2(1), if you've been served with a Notice of Family Claim or Counterclaim and believe that the British Columbia courts don't have jurisdiction or if you believe you were served improperly, you can file and serve a Jurisdictional Response in Form F78.

A Jurisdictional Response lets everyone know that you have a fundamental problem with the claim that has been brought against you, and allows you take certain steps in the proceeding without being considered to have attorned to the jurisdiction of the court. (To "attorn" means to submit to the court's authority, and once someone is found to have "attorned to the court" they can sometimes be prevented from subsequently disputing the court's jurisdiction. People commonly attorn to the court's jurisdiction by filing a response or claim in a proceeding.) Under Rule 18-2(1) and (3), once you have filed your Jurisdictional Response you can:

1. apply to have the claim struck or stayed on the basis that the facts alleged in the claim, even if true, would not give the court jurisdiction in the case;
2. apply to have the claim struck or stayed on the basis that the court doesn't have jurisdiction over you; or,
3. allege in your response that the court doesn't have jurisdiction.

If you are the respondent, you must still file and serve your Response to Family Claim under Rule 4-3(1) even though you've filed a Jurisdictional Response. Under Rule 18-2(5), as long as you bring an application to strike or stay the claim within 30 days of filing your Jurisdictional Response, you can participate in the proceedings by filing a response (and even by making or defending an interim application) without being considered to have attorned to the court's jurisdiction.

This is a complicated subject and I admit that my explanation is a bit technical. Please feel free to post any questions as comments to this post, bearing in mind that I can't give legal advice about your specific circumstances.