Mexican Proposal for the Ultimate Starter Marriage

The BBC has reported on a novel bill introduced to Mexico City's Legislative Assembly of the Federal District by Lizbeth Rosas Montero, a member of the Party of the Democratic Revolution, which would allow newly weds to enter into a marriage contract giving them two years to decide whether to call it quits or renew their vows. Says the BBC:

"Half of all marriages in Mexico City currently end in a split.

"[Montero] believes the contracts, allowing couples to 'renew or dissolve' the marital link after a pre-arranged term, would lead to more harmonious relationships and reduce the workload on family judges.

"Terms governing healthcare provision, the way children are educated, how much money was needed to support the family, and how dependents would be looked after in the case of a break-up would be set out in advance."

This is an interesting idea, which would seem to take the most useful features of a marriage agreement and add a fixed date when the parties would review not just the continuing fairness of their agreement but the continuing value of their relationship. Although I'm certainly in favour of reducing the court's workload, I'm not sure the idea has much potential for Canada given the ease with which couples are presently able to divorce under our present no-fault system.

Court of Appeal Releases Decision on Child Support Liability of New Parent to First Family

The Court of Appeal has just released an interesting decision on a payor's application to suspend her child support obligation to her first family as a result of being on maternity leave for a new child in her second family. (As you might imagine, it is usually men who are the payors of child support and the situation before the court in McCaffrey v. Paleolog requires the happy coincidence of a mother paying child support while becoming pregnant in a new relationship.) The appeal in this case was complicated by legal issues concerning the history of the proceedings, but the reasons from the Court of Appeal are clear enough that we can focus on the law that will be of more general interest.

When a mother paying child support takes maternity leave as a result of a pregnancy in a new relationship, she will usually want relief from the child support obligation to her first family for at least the period she is in receipt of reduced income from maternity benefits. This raises three critical questions for the recipient.

• Is the pregnancy a "material change in circumstances" justifying the payor's application to vary her child support obligation?
  
• If child support will be reassessed, should income be imputed to the mother under s. 19(1)(a) of the Child Support Guidelines on the basis that she is underemployed while on her reduced income?
• To what extent should the first family suffer as a result of the payor's choices in a subsequent relationship?
  

Normally, the courts would leap to impute income to a payor who decided to take a year off work or voluntarily took a position with lower pay. In cases like this, however, there is arguably some necessity to the payor's choice, and the answer to these questions lies in the case law interpreting s. 19(1)(a) of the Guidelines.

This is what that subsection says (I've put the important part in italics):

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

And this is what the Court of Appeal said (you should read the case yourself for the background to the court's analysis):

Imputing Income

Income may be imputed to a parent who is intentionally underemployed unless the parent establishes under s. 19(1)(a) of the Guidelines that the needs of the new child require her to remain at home.

Exception for Children Under the Age of Majority

Having a newborn child or a child of very young age will generally suffice to meet the Guidelines requirement, however "childbirth does not provide an automatic relief from a parent’s child support obligations," and the circumstances of the payor must be examined to determine eligibility in each case.

Guidelines for Imputing Income

The circumstances of the payor should be evaluated using the following factors, which the Court of Appeal, in a 2004 case called Watts v. Willie, borrowed from a 2000 case from the Manitoba Court of Appeal, Donovan v. Donovan:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...

"2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

"3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

"4. Persistence in unremunerative employment may entitle the court to impute income.

"5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

Limit to Relief from Child Support

Where a payor is found to be entitled to the exception for a newborn or very young child, any suspension of her child support obligation must be only for a reasonable period of time, bearing in mind:

1. the financial situation of the payor's present family, since it is the needs of that child which support the s. 19(1)(a) exception, and
   
2. the financial situation of the first family, where the non-payment of support has a particularly harsh effect.

"The circumstances may compel an almost immediate return to work or may provide for full or part-time in-home assistance."

Summary

I can do no better than the court's own summary of its reasoning, found at paragraph 58 of the decision.

"In summary in a case like this:

"1. income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the needs of a child require the parent to remain at home;

"2. it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but

"3. childbirth does not provide an automatic relief from a parent’s child support obligations;

"4. the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan ... ;

"5. any period of non-support must be reasonable in the circumstances."

Fall Legislative Calendar Published

The Legislative Assembly has published its calendar for the fall session, formally known as the fourth session of the thirty-ninth provincial parliament. The Speech from the Throne will be made on Monday 3 October 2011 and the legislature will sit until 24 November 2011, with time off during the weeks of October 10th and November 7th.

With any luck, a bill will be tabled proposing new legislation to replace the Family Relations Act, as foreshadowed by last year's white paper (PDF), at some point during this session. The only question, I think, is whether the government will introduce such significant, marquee legislation when the current Attorney General has been appointed on an interim basis only.

I will publish a link to the page on the Assembly's website where you can monitor the introduction and status of new bills when it becomes available.

For more information about the white paper, click on the "White Paper" label below; I've previously written about the legislative process and the current effect of the proposed law here.

Update: 3 October 2011

You can monitor the status of new bills introduced in the legislature on this page: www.leg.bc.ca/39th4th/index.htm

Parental Support in British Columbia

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.

CBC, the Victoria Times Colonist and Global (video) have reached reported, with varying degrees of accuracy and inaccuracy, on a case currently before the British Columbia Supreme Court involving an aged mother's claim for parental support from her adult children. Parental support claims are exceedingly rare, likely because of the enormous degree of family dysfunction which must exist before a parent brings a lawsuit against his or own children, and as a result such claims are poorly understood. Let me set the record straight.

Background

Legislation on parental support first entered the books in 1922 in the midst of the financial tumult following the end of the First World War, in the form of the Parents' Maintenance Act. Since there wasn't a Hansard transcript back then, all we know about the intention of the legislature comes from the closing remarks of the Administrator, as recorded in the Journals of the Legislative Assembly:

"In relieving you from your legislative duties, it is with pleasure that I express my appreciation of the earnestness with which you have applied yourselves to the important questions submitted for your consideration.

"I note with gratification the humanitarian aim of measures to provide for the maintenance of the children of unmarried parents, and for the support of needy parents by their children."

The new act imposed a duty on children to provide for the support of their parents, and allowed a parent in financial need because of "age, disease or infirmity" to apply for an order requiring the child to pay parental support.

The Parents' Maintenance Act continued until 1972 when it was repealed and its core provisions merged into the new Family Relations Act, now s. 90 of the current act, as follows:

Obligation to support parent

90 (1) In this section:

"child" means an adult child of a parent;

"parent" means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.

(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.

Treatment by the Courts

Despite the fact that legislation on parental support has been around for about 90 years, very few people have actually advanced claims for child support, in fact there are only nine or ten reported decisions on the subject! Those nine or ten cases are enough, however, to get a sense of how the court has handled parental support claims, and here's a summary of the basic principles:

1. The adult child's need to support him- or herself, a spouse and any children rank ahead of the adult child's obligation to support a parent. (Hua v. Lam, 1985 BC Provincial Court)
   
2. Any estrangement between the adult child and his or her parent, and the reasons for that estrangement, are factors to be taken into account in ranking the needs of the adult child. (Newson v. Newson, 1997 BC Court of Appeal)
3. Support may be payable when the conduct of the adult child has caused the dependence of the parent. (Peach v. Emlyn, 1999 BC Supreme Court)
4. When the parent seeking support has a spouse, the parent must first look to his or her spouse for support before claiming it from any adult children. (Puskeppelies v. Puskeppelies, 1997 BC Supreme Court)
5. A parent liable to pay spousal support cannot apply for parental support for the spouse in order to duck the spousal support obligation. (Smeland v. Smeland, 1997 BC Supreme Court)
   

The Future of Parental Support

In the white paper (PDF) on family law reform, published last summer by the Attorney General, the government proposed not to carry provisions for parental support forward into any new law which might replace the Family Relations Act. This would effectively terminate further applications for parental support if the Family Relations Act is repealed, and seems to be a sensible decision given the well-reasoned recommendations of the British Columbia Law Institute in its 2007 report on the subject.

You can find additional information about parental support on my website in the first chapter of the Other Family Law Issues section.

Supreme Court Releases Important Decision on Standard of Interpretation

The Supreme Court of British Columbia has released an important new decision, Luu v. Wang, on the degree of competency required of those who interpret English-language affidavits being sworn by non-English-speaking deponents.

The problem begins with the somewhat ambiguous provisions of Supreme Court Civil Rule 22-2(7) (Rule 10-4(7) of the Family Rules):

"If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit."

Since every document filed in court must be in English (SCCR 22-3(2), SCFR 22-1(2)), this rule is meant to explain how you deal with someone who needs to make an affidavit (a "deponent") but doesn't speak English. In a nutshell, a "competent interpreter" is required to read the affidavit to the deponent, who must then sign a certificate on the affidavit confirming that the rule has been complied with.

The problem in Luu was that rule doesn't define what "competent" means and doubt had been cast on the neutrality of the interpreter. This is what the certificate required by the Rules says:

ENDORSEMENT OF INTERPRETER

1. I have knowledge of the English and _____________ language and I am competent to interpret from one to the other.

2. I am advised by the person swearing or affirming the affidavit and believe that the person swearing or affirming the affidavit understands the _____________ language.

3. Before the affidavit on which this endorsement appears was made by the person swearing or affirming the affidavit, I correctly interpreted for the person swearing or affirming the affidavit from the English language into the _____________ language, and the person swearing or affirming the affidavit appeared to fully understand the contents.

Signature of Interpreter

This doesn't set an objective standard of competency either. It merely requires the interpreter to believe that he or she is competent to interpret and say so, and makes no demand that the interpreter be neutral.

The judge resolved the problem by referring to a 1994 criminal case from the Supreme Court of Canada, R. v. Tran, in which the court held that:

1. the right to an interpreter is guaranteed by s. 14 of the Charter of Rights and Freedoms;
   
2. the translation must be impartial, objective and unbiased; and,
3. this right is "held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses."

Accordingly, the judge in Luu concluded that:

"Where, like here, a reasonable doubt has been raised about the interpretation, the Court is in a position to conduct an inquiry into the qualifications of the interpreter or to set into motion a new interpretation which complies with the qualifications that should be expected of all interpreters.

"Here, there are legitimate reasons to doubt the objectivity of the interpreter. In the circumstances, I am satisfied that the Plaintiff has raised sufficient doubt regarding the competency and neutrality of the interpreter that it is appropriate to require a new affidavit from SZ.

" There will be an affidavit prepared in the Mandarin language. That affidavit will set out the same content as the August 11, 2011 affidavit of SZ. The new affidavit will be endorsed by an interpreter other than his daughter, BZ. The new interpreter must be one who is a certified interpreter."

I don't think it is necessary to read Luu as requiring that all interpreters be certified, but where there are doubts about the competence and neutrality of an interpreter, the court will inquire into the interpreter's skills, objectivity and impartiality. Since this problem comes up quite frequently in family law cases, where affidavits are commonly interpreted by relatives, friends, neighbours, nannies and dog walkers, if an affidavit is particularly important, it is highly advisable to have it interpreted by a neutral third party at the very least, and interpreted by a professional interpreter at best.

Your Computer, Your Separation and You

This post is about managing your electronic life after you and your partner have split up.

Change Your Passwords

Change all of your passwords to all of your electronic accounts. This includes your bank accounts, your ISP email account, your Hotmail, Yahoo and Gmail email accounts, your Twitter account, your blog and your Facebook accounts, and any other account you access through the internet. (Don't forget to reset the password to your computer, your phone and your voicemail while you're at it.)

You will also want to change your telephone access passwords with your bank, credit union and credit card companies, and you should update the list of people authorized to make changes to your utilities.

When you're picking a new password, don't pick the name of a child or pet or anything else which can be quickly guessed; you would not believe the number of clients of mine whose exes have hacked their accounts after the passwords had been changed! What you're looking for is a random word and a couple of numbers, plus a special character or two if they're allowed, which you can easily remember. For example:

27pickles#

cranky8fish!

h0m3sw33th0m3

If you can only pick numbers, don't pick four of the same number, 1234, your birthdate or a child's birthdate; pick something random and change it frequently.

Emails, Texts and Instant Messaging

Work on the assumption that everything you text, twitter or email to your ex will find its way into an affidavit. Write each message as if a judge will be reading it!

If you're on the receiving end of an unpleasant communication, on the other hand, keep a copy and make a print out. (This can be challenging with texts, but it can be done.) You must also resist the temptation to lash out and reply in kind.

Facebook

In addition to changing the permission settings for your ex, you want to be moderate in what you post. You know how you and your ex have all those friends in common? Assume that someone will be keeping your ex up to date.

Do you have any other tips to share? Please add a comment to this post.

That's an Expensive Headache: Wife Receives Damages for Husband's Indifference

The Guardian has reported on the curious case of the French wife who sued for divorce based on, I assume, a violation of the duties of marriage under Article 242 of the French Civil Code. What makes the case interesting is the judge's decision to fine the husband 10,000 euros to compensate the wife for the particular violation complained of, namely "lack of sex over 21 years of marriage."

Under the antique English common law, marriage came with an abundance of rights and duties. The husband had the duty to provide his wife with the necessities of life and had the right to her domestic services, the right to her property and income, and the right to have her live with him and have sex with her as he wished, called consortium. It seems that the French civil code developed in a similar manner. Title V concerns the law on marriage, including the obligations marriage gives rise to (Chapter V) and the rights and and duties of spouses (Chapter VI), and Title VI concerns the law on divorce.

In this case the husband was sued for breach of Article 215 (Title V, Chapter VI), which provides that:

"Spouses mutually oblige themselves to a community of living."

The judge held that sexual relations are a part of a "community of living," and the Guardian quotes the judge as saying that:

"A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other."

Interestingly, from the size of the award, one can deduce that the going rate for sex in marriage is about 1.3 euros a day or about $1.80 Canadian at today's rate.