Introduction of Family Law Reform Bill to be Delayed

Attorney General Barry Penner made a statement yesterday that a bill proposing new family law legislation will not be introduced in this legislative session. The fall legislative session, the next opportunity to introduce the bill, will commence sometime in September or October.

The bill, if and when it is tabled in the provincial legislature, will be based on the white paper (PDF) released last summer, although the government has not indicated the extent to which the draft legislation will resemble the Family Law Act described in its discussion paper. For more information click on the "White Paper" label below.

Malta Votes to Legalize Divorce

The Times of Malta has reported the results of a national referendum on the issue of divorce. With 72% voter turn out in this staunchly Catholic country, the pro-divorce Divorce Movement (slogan: "Give Love a Second Chance") has prevailed over the Nationalist Party government (slogan: "Jesus Yes, Divorce No") with 52% of the popular vote. Prime Minister Gonzi has said that the results would be respected and government will introduce legislation to enable divorce.

Malta is the last European nation to legalize divorce. Yay, Malta! You can find a bit of information on the origins of the Commonwealth laws on divorce in my post "Polygamy: The Legal Background."

DivorceMate Provides Free Advisory Guidelines Calculator

In April 2011, DivorceMate, one of Canada's major publishers of spousal support and child support software, published a new website, www.mysupportcalculator.ca. The website advertises lawyers and law firms, performs child support calculations under the Child Support Guidelines and, most importantly, performs spousal support calculations using the Spousal Support Advisory Guidelines formulas.

Although the spousal support calculators available at mysupportcalculator.ca do not generate results which match those produced by DivorceMate's expensive software for professionals and do not account for all of the factors which can impact on the Advisory Guidelines formula results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth), the results will be fine for most people most of the time.

(One point about the Advisory Guidelines deserves particular mention. The spousal support formulas will almost always produce some numbers for spousal support. However, the mere fact that the formulas — and the www.mysupportcalculator.ca calculators — generate numbers for amount and duration does not mean that someone is entitled to receive spousal support. Entitlement must be established first. Once entitlement is established, then the results have significance.)

DivorceMate deserves much praise for making these calculators publicly available. The new website goes a long way toward addressing the need for free, public calculators which can handle the complex math required by the Advisory Guidelines.

For an overview of the Advisory Guidelines formulas and a complete review of the data they require, see my paper "Obtaining Reliable and Repeatable SSAG Calculations" (PDF) from the website of the Department of Justice.

Update: 12 July 2011

Having updated my DivorceMate software, I am pleased to report that the results of the free www.mysupportcalculator.ca calculator are an almost exact match to the results generated by the professional software when the data are limited to match the www.mysupportcalculator.ca inputs. Good job, DivorceMate!

Protecting Property

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

When a relationship has come to an end, it's usually a good idea to take steps to preserve the assets available for distribution between the parties. I'm not saying that every time a couple splits up one of them will be up to no good, but it usually pays to be cautious and careful. If your ex does decide to try and play games, it can be expensive to undo the damage. In this post, I'll review some of the common and not so common ways that property can be protected. Note that some remedies are only available to married couples, and that most remedies require the commencement of court proceedings.

File an Entry Under the Land (Spouse Protection) Act

A married spouse can apply for an entry against the title of the family home under the Land (Spouse Protection) Act. The entry will stop the property from being sold without the consent of the person who obtained the entry. Here's the fine print:

• The property must be located in BC.
• The parties must not be divorced at the time of the application.
• The entry only applies to property "occupied by the husband and wife as their residence," and which is owned by one or both spouses.
• The application must be made within one year of moving out of the property.

The cool things about entries under the Land (Spouse Protection) Act are that they can be obtained without commencing a law suit and the other spouse is not normally notified about the entry. The bad news is that the act ceases to apply once a couple are divorced, which means that the entry, although still on title, will be ineffective to prevent the transfer of the property.

Register a Certificate of Pending Litigation
Married spouses and unmarried people can apply to register a certificate of pending litigation under the Land Title Act against the title of any real property to which they claim an interest. Once the CPL is registered, the owner will be unable to transfer title of the property or obtain a new mortgage until the CPL is canceled. Here's the fine print:

• The property must be located in BC.
• Litigation must have commenced in the Supreme Court, and the litigation must include a claim about the property proposed to be subject to the CPL.
• The person applying for the CPL must be claiming an interest in the property in the litigation.

CPLs are registered with the Land Title and Survey Authority, after being stamped by the court where the litigation was commenced to confirm that the litigation includes a claim about the property the CPL is going to be registered against.

Apply for a s. 67 Restraining Order

A married spouse can apply for an order under s. 67 of the Family Relations Act to restrain the other spouse from selling the family assets or using them as collateral. A restraining order doesn't create an automatic bar to selling the family assets or using them to obtain a loan the way a CPL automatically prevents the transfer of land. Instead, if the person subject to the order breaches the order, he or she can be punished for contempt of court. Here's the fine print:

• The restraining order covers real property and personal property located in BC, as well as personal property located outside the province.
• Litigation must have commenced in the Supreme Court.
• You must apply for the order in chambers.

The nice thing about s. 67 orders is that they are all but mandatory on the application of a party. If you need this order, you just have to apply for it and the court will give it to you.

Apply for an Injunction

Married spouses and unmarried people can apply for an injunction under Rule 12-4 of the Supreme Court Family Rules to stop the other party from dealing with assets, and the injunction can theoretically be as narrow or as broad as is required to accomplish the task. Again, the fine print:

• The injunction can cover real property and personal property located in BC, as well as personal property located outside the province.
• Litigation must have commenced in the Supreme Court.
• You must apply for the order in chambers and the court may not make the order you want.
• You must promise to make good any harm the other party suffers as a result of the injunction.

Married spouses and unmarried people can also apply for the same relief under s. 39 of the Law and Equity Act.

Apply for an Order for the Detention and Preservation of Property

Married spouses and unmarried people can apply for order for the detention and preservation of assets under Rule 12-1 of the Supreme Court Family Rules where there is a real risk that the other party will sell, damage or conceal property. The purpose of this order is to protect the assets from loss or a reduction in value, and can include a term requiring a party to deliver a specific thing to the other party. Here's the fine print:

• The order can cover real property and personal property located in BC.
• Litigation must have commenced in the Supreme Court.
• You must apply for the order in chambers and the court may not make the order you want.

Married spouses and unmarried people can also apply for essentially the same relief under s. 39 of the Law and Equity Act.

Japan Finally to Sign Hague Convention

The BBC has reported that, at long last, Japan is going to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction later this year.

Japan's move is significant, not only because it is the last of the Group of Seven industrialized nations to sign the convention, but because Japanese family law favours single-parent families after separation and thus envisions a distribution of parental rights at odds with the convention's presumption of joint parental significance.

Supreme Court Releases Decision on Retroactive Spousal Support

The Supreme Court of British Columbia has just released an important decision on retroactive spousal support, among other issues, in the case of Crowe v. Crowe. The law in this area has been changing in the last few years, roughly tracking the changes in the law on retroactive child support with a three or four year delay, and this case offers an excellent summary of the current state of things.

In this case, the court examined the recent case law, including two important recent cases of the Supreme Court of Canada, D.B.S. v. S.R.G. and Kerr v. Baranow, in the context of a review of spousal support and reached the following conclusions:

• Whether to order retroactive spousal support is a discretionary decision resting on the particular circumstances of the particular parties before the court.
  
• The factors to be considered on an application for retroactive spousal support are similar to the factors considered on an application for retroactive child support.
• These factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.
• However, because spousal support has a different legal basis than child support and there is no presumptive entitlement to spousal support, concerns about notice, delay and misconduct will carry more weight.
• The Spousal Support Advisory Guidelines may be used to determine spousal support on a review application.
  

CRA to Change Sharing of Child Benefits

Effective 1 July 2011, the Canada Revenue Agency will be changing its method for allocating the Canada Child Tax Benefit between separated parents who share their children's time equally or near-equally.

At present, when the CRA learns that separated parents have shared custody it rotates the child-related benefits and credits between the parties, such as the CCTB, the National Child Benefit Supplement, and the Universal Child Care Benefit, on a six-month on/six-month off basis. That's fair where both parents have about the same income, however, since the CCTB and the NCBS are indexed to income, it can be unfair where one parent would parent would get a lot of money out of the benefits and the other would get nothing.

Under the new rule, when when parents have shared custody the CRA will pay to each parent one-half of the benefits that parent would be entitled to receive if that parent were the only person entitled to the benefits. This will end the six month rotation of eligibility and will index the amount paid to only the income of the recipient.

The new rules will apply to:

• the CCTB and, I assume, the NCBS
  
• the UCCB
• the child-portion of the quarterly HST credit
  
• the BC Family Bonus

For more information, see the Child and Family Benefits page of the CRA's website, or call 800-387-1193.