This blog provides updates on important developments in family law in British Columbia and news about changes to the legislation, court procedures and court rules applicable to family law cases and is curated by Collaborative Divorce Vancouver
"The BC Code has been designed as a reference tool to help assist lawyers and the Law Society in answering those ethical questions. The ethical guidelines familiar from the Handbook have been preserved in the BC Code, but they have been expressed in a way that is expected to make it easier for the profession to use.
"'The principles are the same, but the manner of expressing those principles is better,' said [Gavin] Hume. He describes the Handbook as a kind of 'statutory' document, similar to legislation. The BC Code, on the other hand, provides a rule and then additional commentary on how the rule operates."Family law lawyers already grappling with the new Family Law Act, new regulations and new rules for the Supreme Court and Provincial Court will be grateful for the relative modesty of the change.
"This survey is intended to canvas family law lawyers’ opinions on the enforcement of orders and agreements dealing with custody and access. Bearing in mind that the bench has little if any influence over legislative reforms, do the available mechanisms work well or poorly? Could they be made to work better or should they be scrapped and other mechanisms implemented in their place? In particular, how effective are current remedies pursued through the courts?"
"I am encouraged by today's announcement regarding the appointment of nine new Provincial Court Judges. As Chief Judge, my focus is on identifying and meeting the ongoing needs of the Court, including increasing accessibility to the Court.
"The early replacement of several Judges scheduled to retire or join the senior program in 2013 will provide some capacity to assist in reducing the case backlog."
"At least 14 hours of in-depth training on how to identify and screen for family violence or power imbalances to determine whether, or what type of, dispute resolution process is appropriate.
"A minimum level of family-related experience and training in their area of practice.
"A minimum of 10 hours a year, per year, of ongoing training to ensure their skill set remains relevant.
"Extensive training on the new Family Law Act."These training standards must be met by 1 January 2014, giving everyone just over a year to get up to speed. Lawyers working as mediators, parenting coordinators and arbitrators will also additionally be governed by the training standards (PDF) required by the Law Society as they may be amended from time to time.
"The Provincial Court of British Columbia is the only provincial court in Canada with fewer judges today than in 2005. In fact there are 17 fewer judges, and unless further appointments are made, this will result in a loss of over 900 trial days in 2010 and over 1600 trial days in 2011.
"To be effective in supporting the rule of law, and to fulfill its legal obligations to the public, the Court must process cases within a reasonable time. For most cases the Court is legally obligated to provide timely access and, as with other courts across Canada, seeks to manage its caseload according to accepted standards which reflect the relative public interest and priority of the different case types.
"Given the reduction in the judicial complement the Court is unable to 'keep pace' with the new cases being presented to it. The current inventory of uncompleted cases is growing markedly, as is the delay for all case types other than youth court prosecutions. Increasingly the Court is failing to meet its legal obligation to provide timely access to justice."The court has now released an update to the 2010 report (PDF), current to 30 September 2012.
"The guidelines are a detailed compilation of the knowledge acquired by our Distance Family Mediation Project on the topic of how to conduct family mediation 'from a distance', using technology. The project – which took place in three phases, beginning in 2007 – explored the feasibility of using information and communication technologies to conduct distance family mediations in British Columbia. The third phase, completed in June 2012, was a pilot providing family mediation services to people in all parts of the province, with a focus on using web conferencing technology.
"This second edition of Mediating from a Distance updates and expands on the guidelines published previously by our project, and highlights the knowledge gained during the third phase. It provides a new and exciting emphasis on how to mediate using video and web conferencing technology, as well as offering additional suggestions for mediating with other types of technologies."MediateBC has done a fantastic job piloting distance mediation, an essential resource in the lesser-populated areas of the province where it can be very difficult to find a qualified mediator.
[71] Dealing with an OPCA litigant is difficult and frustrating. The fact that they are almost always self-represented adds to the challenge. What is worse is if a [OPCA proselytizer] is directly involved. I anticipate most judges will not tolerate representation by these persons ... particularly if the judge understands the nature of the [proselytizer] and his activities. ...
[72] Timely and cost-effective resolution of these disputes requires that an action be pared down to its legitimate substance. That can be achieved by applications to strike irrelevant submissions and pleadings, and to categorize materials as irrelevant except for the purpose of costs, vexatious litigation and litigant status, and contempt and criminal sanction.
[14] Briefly, Ms. Boland changed [the child's] name from “____ ____ ____ Landa” to “____ ____ ____ Boland Landa” in order to include her own surname. She appears to have sought this change under s. 4 of the Name Act, R.S.B.C. 1996, c. 328. That section normally requires consent, although there is provision to waive consent under section 4(6) due to exceptional circumstances.
[15] Mr. Landa wants a hyphenated surname “Landa-Boland” with his name first. Ms. Boland wants the surname “Boland-Landa” with her name first. Ms. Boland is the primary caregiver of the child.
[35] ... including the name of both parents is consistent with a child’s best interests. This is not a random change of name. Nor is it a request without a purpose. In the absence of any evidence to suggest that [the child's] existing surname – the name of only one parent – is in his best interest or otherwise preferable in the circumstances, a surname that includes the names of both parents cannot be rejected simply on the basis that the status quo should prevail. Not only is there no reason why the name should not change but also, in the circumstances of [the child], given his young age (he was still three when the initial application was filed) and close relationship with both parents, he will benefit from a name that reflects his connection to two separate families.Finally, the court takes some guidance from s. 4.1 of the Vital Statistics Act, the provincial law that deals with, among other things, the registration and naming of newborn children. Section 4.1 deals with declarations of parentage, and subsection (2) provides that when the court is also making an order about the child's name, the court must choose either:
[19] I do not consider there to be any factors, singly or collectively, preponderantly favouring that either parents name go first in the present case. ...
[21] ... the parties seem to be in agreement, a hyphenated last name would promote the child and his collaterals indentifying with both parents.
[22] In choosing the order of the last names here as “Boland-Landa” on the basis of alphabetization, the decision would be consistent with provincial legislation and does not favour either parent. It is a neutral choice.
[23] The name also has the advantage of being least disruptive to the child, as it is essentially the same name that the child has borne for the past several years. In my opinion the order of the last names alphabetically hyphenated promotes [the child's] best interests.For those of you who are curious, the general rules for the naming of children by parents are set out at s. 4 of the Vital Statistics Act:
[88] ... the onus is on the party seeking to vary the agreement to establish that it is unfair; fairness is not to be equated with equality or near equality. ...
[89] ... in relation to the division of family property, that such a division may have to be unequal in order to be fair. ...
[90] ... the question of fairness in family property matters ought not to be approached from a commercial perspective. It is necessary to examine whether the agreement reached was actually fair. ...
[91] ... s. 65 of the FRA does not permit the Court to set aside agreements; it only authorizes reapportionment on the basis of unfairness.
[47] ... in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support. The court must then, in consideration of those factors listed in s. 65(1) of the FRA, make a determination as to whether the contract operates unfairly. At this second stage, consideration must be given to the parties’ personal and financial circumstances, and in particular to the manner in which these circumstances evolved over time. Where the current circumstances were within the contemplation of the parties at the time the Agreement was formed, and where their Agreement and circumstances surrounding it reflect consideration and response to these circumstances, then the plaintiff’s burden to establish unfairness is heavier. Thus, consideration of the factors listed in s. 65(1) of the FRA, taken together, would have to reveal that the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances. This approach, in my view, accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties’ intentions, on the one hand, and assurance of an equitable result, on the other.The court in Giebelhaus then applied the first stage of the Hartshorne test to see what the parties would be left with under their separation agreement and concluded that the husband would be left with assets totalling $130,265 while the wife would receive, including the family home, assets totalling $242,564.
If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to
(a) the duration of the marriage,
(b) the duration of the period during which the spouses have lived separate and apart,
(c) the date when property was acquired or disposed of,
(d) the extent to which property was acquired by one spouse through inheritance or gift,
(e) the needs of each spouse to become or remain economically independent and self sufficient, or
Considering the length of the parties' 14 year marriage, the needs of each spouse to become or remain economically independent and self sufficient, and the general s. 65(1)(f) catch-all factor, "any other circumstances relating to the capacity or liabilities of a spouse," the court concluded that the separation agreement was unfair and its division of assets therefore "outside of a reasonable range." The court awarded the husband a further $45,000, leaving him with $175,265 and the wife with $197,564... not exactly an equal division but significantly better than the original agreement.(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.
[44] The meaning of independent legal advice in the family law context was well described by Pitfield J. in Gurney v. Gurney, 2000 BCSC 6:
[29] In the family law context, providing independent legal advice must mean more than being satisfied that a party understands the nature and contents of the agreement and consents to its terms. The solicitor should make inquiries of the party so as to be fully apprised of the circumstances surrounding the agreement. The party should be advised of his or her legal rights and obligations in relation to the subject matter of the agreement and advised of the consequences associated with a refusal to sign. The solicitor should offer his or her opinion on the question of whether it is appropriate for the party to sign the agreement in all of the circumstances. It is only with that kind of advice that the party can make an informed decision about the advisability of entering into the agreement as opposed to pursuing some other course. ...[45] In Bradshaw v. Bradshaw, 2011 BCSC 1103, which refers to Gurney, the Court summarized the principles concerning independent legal advice in the family law context as follows:
[49] Independent legal advice, in the family law context, is important because it ensures that the spouses are fully aware of their statutory and common law rights and obligations. It safeguards against one spouse taking unfair advantage of another and redresses or at least minimizes disparity of bargaining power between them... In Gurney, Pitfield J. found that "the lack of independent legal advice in this case is not fatal and the agreement should not be set aside because of its absence" (at para. 30). Indeed, the absence of independent legal advice will not, by itself, invalidate an agreement ... Nor will the receipt of independent legal advice automatically cure or neutralize one or both spouses' vulnerabilities; in other words, it will not protect an otherwise invalid or unfair contract ...[46] I return to s. 65(1)(f) and the factors of the capacities or liabilities of a spouse. I have found the claimant did not have an accurate understanding of the respondent’s income as he had no idea of the value of her pensions. ... In the words of Bradshaw, he was not "fully aware" of his rights and obligations. When these facts are taken into account, I conclude the agreement is unfair. The respondent received the matrimonial home and retained all her pensions. She gave up little. The claimant gave up much. In the result, the statute permits the Court to divide the property appropriately.
"The decision by B.C.’s two trial courts to allow in-court tweeting only by accredited journalists and lawyers smells of judicial snobbery.
"There’s no good reason anyone with a legal degree, along with me and my ilk, should be allowed to fire off email and 140-character notes from a courtroom while an ordinary joe gets the bum’s rush from the sheriff."Actually, there is a good reason.
[9] I find that the appointment of a child advocate was necessary in this case. In Dormer v. Thomas, Martinson J. noted that in family cases with complex and contentious circumstances, one of the ways the court can carry out its legal obligation to determine the best interests of the children is to have representation for the children. The appointment of a child advocate is one of the ways this can be accomplished.
[10] Here, the situation was complex and contentious. There were claims of inappropriate sexual touching of children other than the children of the marriage, which D.J.M. denied. There were also allegations of alienation which C.L.M. denied. A report had been prepared regarding the views of the children, but it did not comment on the maturity of the children or the question of whether the children were influenced by their mother. In addition, there was no opinion evidence before the court in the form of a Family Relations Act s. 15 report commenting on the best interests of the children. In these difficult circumstances, there was a tremendous benefit to the court in having [the child advocate] present the children’s position. I found [the advocate's] submissions to be carefully considered and extremely helpful.Having established that the child advocate served a useful role and that his retainer was not an unnecessary frivolity, the court then considered whether the expense was an expense that should be recovered by the person awarded costs as a normal disbursement, like the expense of an expert, incurred to advance the case. The court set out seven considerations that should be taken into account in this analysis:
[16] Balancing these factors in this case, I have determined that C.L.M. is entitled to recover, as a disbursement from D.J.M., one-half of Mr. W.’s fee as advocate for the children. While C.L.M. was successful, the question of access was not finally resolved by the application. The other factors set out above are of some significance in this case. D.J.M. never consented to Mr. W.’s appointment. At the time of hearing of the application, he did not anticipate that at the end of the day he might be asked to pay Mr. W.’s fees. The application before Master Taylor did not settle that issue in a definitive way. Mr. W. carried out his duties in an impartial and appropriate way. His contribution to the proceeding was of assistance to both parties. In this case, both parties do have some ability to pay. In these circumstances, I am of the view that it is appropriate for the parties to share the expense equally.[This is, I am surprised to see, my two hundredth post. My thanks to the law nerds and others following my blog for their continuing attention and for making this blog as popular as it has become.]