30 July 2011

Stepparent Caught by Hole in Family Relations Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

The Family Relations Act, British Columbia's primary law on domestic relations, is missing something very important: a triggering event for applications involving custody, guardianship, access, child support and spousal support. Nothing in the law restricts how soon an application on these issues can be made; in particular, nothing says that an application can't be brought while a couple are still together.

This isn't usually a problem, of course, since people are usually pretty annoyed when they decide to sue one another, and if they haven't split up by the time litigation commences, the commencement of litigation will usually do it. However, there can be odd consequences when other people, like grandparents or former spouses, step into the picture, since nothing says when they can and can't make applications of their own. (I made some comments about this during the consultation phase of the Family Relations Act Review, and there's a chance that the new legislation will correct this issue.) The legislative chickens came home to roost for one stepfather after an application by the child's biological father in a case recently before the Provincial Court and brought to my attention by my friend Agnes Huang of Schuman Daltrop Basran Robin.

In K.A.L. v J.P.R., the biological father brought an application for an order that the mother's new spouse - his child's stepfather - pay child support. So far this is fine, since stepparents are also liable to pay child support. The catch, though, is that the stepfather and the child's mother were together when the father brought his application!

The judge made a very thorough review of the Family Relations Act and the Child Support Guidelines for the following basic principles:
  1. Each parent of a child is responsible to support a child. (FRA, s. 88(1))
  2. The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
  3. "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
  4. A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))
  5. Child support orders are to be made using the Child Support Guidelines tables. (FRA, s. 93(1))
  6. Child support orders can be made in a different amount than the Guidelines tables, but only when there is an order or written agreement that provides a benefit to the child in some way and it would be unfair to apply the Guidelines tables. (FRA, s. 93(2))
  7. Child support orders against stepparents can also be made in a different amount than the Guidelines tables as a result of "any other parent's legal duty to support the child." (CSG, s. 5)
And there you have it. Parents are liable to pay child support, stepparents are liable to pay child support for the benefit of a child, more than one "parent" can be required to pay child support at the same time, and nothing says when an application can and can't be made or restricts when a parent can bring the application. As a result:
"I, therefore, find that when one reads the legislated scheme for child support as a whole, and give the wording its 'grammatical and ordinary sense', a stepparent who satisfies the definition of 'parent' and lives with the parent of a child, is still obligated to make child support payments. This obligation occurs despite the fact that the parent of the child is also obligated to make child support payments."

"The [father] is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines."
Now, the judge didn't make an order against the stepfather at this point, and nor did the judge comment on who might be the recipient of the child support order. That will be the subject of a future application, and I expect that some interesting arguments will be advanced. I also wonder whether, some time before that application, the mother and the stepfather will enter into a written agreement under which the stepfather provide sufficient indirect benefits to the child that his child support obligation will be exhausted.

25 July 2011

Law Society Approves Practice Guidelines for Family Law

The Law Society of British Columbia has endorsed a package of best practice guidelines (PDF) recommended by its family law task force with much input from a working group established by the Canadian Bar Association British Columbia. The impetus for these guidelines stems from the Family Justice Reform Working Group's 2006 report, A New Justice System for Children and Families (PDF), which recommended that:
"... the Law Society of BC recognize the changing roles and duties of family law lawyers and develop a Code of Practice for Family Lawyers to give guidance in the balancing of a lawyer’s partisan role with the potential harm it may cause to other family members, especially children."
The guidelines are true guidelines, in the sense that they set out practice standards to be aspired toward rather than a compulsory code of conduct, and what's most interesting about them is that they could easily apply to all participants in the justice system, not just lawyers.


1. Lawyers should conduct themselves in a manner that is constructive, respectful and seeks to minimize conflict and should encourage their clients to do likewise. (Lawyers are not obliged to assist persons who are being disrespectful or abusive.)

2. Lawyers should strive to remain objective at all times, and not to over-identify with their clients or be unduly influenced by the emotions of the moment.

3. Lawyers should avoid using inflammatory language in spoken or written communications, and should encourage their clients to do likewise.

4. Lawyers should caution their clients about the limited relevance of allegations or evidence of conduct.

5. Lawyers should avoid actions that have the sole or predominant purpose of hindering, delaying or bullying an opposing party, and should encourage their clients to do likewise.

6. Lawyers cannot participate in, and should caution their clients against, any actions that are dishonest, misleading or undertaken for an improper purpose.

7. Lawyers should keep their clients advised of, and encourage their clients to consider, at all stages of the dispute:
a. the risks and costs of any proposed actions or communications;
b. both short and long term consequences;
c. the consequences for any children involved; and
d. the importance of court orders or agreements.
8. Lawyers should advise their clients that their clients are in a position of trust in relation to their children, and that
a. it is important for the client to put the children’s interests before their own; and
b. failing to do so may have a significant impact on both the children’s wellbeing and the client’s case.
9. Lawyers should advise their clients of and encourage them to consider, at all stages of the dispute, all available and suitable resources for resolving the dispute, in or out of court.

These principles all strike me as reasonable. They reflect how I practice family law and how I would like all lawyers to practice family law.

15 July 2011

Judge Forced to Name Child

The Daily Mail reports that a judge of the Family Court of Australia was put in the unenviable position of having to pick the name of a two year old child whose birth had yet to be registered as a result of her parents' squabble. Apparently, the child's parents split up before the child was born and couldn't agree on what name she should have. The father insisted on calling her by one name - and did - while the mother insisted on calling her by another - and did.

Having been forced to decide the matter, the court acted in the manner of all commonwealth family law courts and resolved the issue through a rigorous application common sense... after the father refused a proposal to simply hyphenate the two names. The court picked the name chosen by the mother as that was the name by which most people knew the child and because the root of the father's opposition to the name lay in his "determination to control the mother and her parenting" rather than some rational objection.

09 July 2011

Prof. Thompson Digests BC Law on Mobility

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

On 8 July 2011, Professor Rollie Thompson, one of Canada's leading academics in family law and a co-author of the Spousal Support Advisory Guidelines (PDF), presented a summary of the recent British Columbia case law on mobility issues at a conference organized by the BC Continuing Legal Education Society.

Mobility issues are among the most difficult problems family law lawyers are called upon to address, and come up when one parent wants to take the children and move away from the other parent. Small moves really aren't the issue; what I'm talking about are moves out of town which will have a serious impact on the non-moving parent's ability to spend time with the children. The problem with moves like this is that while the moving parent usually wants to move for important reasons (to take a new job, to go to a new school, to be with family, or to live with a new partner), the move will have an inevitable impact on the non-moving parent's relationship with his or her children, and it can be extremely difficult to balance the moving parent's legitimate interest in moving with the non-moving parent's equally legitimate interest in maintaining a relationship with the children.

A 1996 case of the Supreme Court of Canada, Gordon v. Goertz, was supposed to provide guidance about when moves should be allowed and when they shouldn't, and the case set out a helpful list of factors supporting moves and factors opposing them. However, in the years which followed some cases interpreted the Gordon factors one way and some interpreted them another way, with the result that the case law has become as useless hodgepodge and Gordon can be made to say anything you want it to say. In fact the only useful thing you can get from the case law on mobility is the fact that in a narrow majority of cases the parent with primary care of the children gets to move.

This is tremendously difficult for family law lawyers, as it means that we can't give our clients meaningful predictions about whether a move will be allowed or not. All we can offer is a statistical observation which says nothing about what will happen in their particular circumstances.

This is where Professor Thompson's presentation comes into things. The last time I heard an analysis of post-Gordon cases was in 2003 or 2005, and the conclusion the speaker reached was that in something approaching 60% of Canadian mobility cases, the parent with primary care was able to move. Professor Thompson took a look at British Columbia mobility cases over the last few years and provided a number of observations about trends in this province:
  • The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%, but moves are permitted about 57% of the time in BC.
  • Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
  • Moves were refused in 8 of 9 cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
  • Moves were allowed three-quarters of the time when the children were aged 0 to 5, declining to about half the time for children aged 6 and older.
  • Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
  • The rule from Gordon that the reasons for the move should not be canvassed is almost universally ignored, and applications to move will not succeed when the application is made in bad faith or for trivial reasons.
Bearing in mind that statistics can only give you information about general trends and not about what the decision will be in a particular case, it seems that applications to move will most likely succeed when:
  1. the child is of pre-school age;
  2. the parent wishing to move has clearly been primarily responsible for the care of the children;
  3. the application is made after trial; and,
  4. the application is made for a good reason.
On the other hand, applications to move will most likely fail when:
  1. the parents share the children's time equally or near-equally; and,
  2. the application is made in bad faith or for a bad reason.
You can get a bit more information about mobility issues from my website.