30 December 2012

Adult Children's Access to Parents Now Mandatory in China

The BBC has reported on an innovative new law enacted by the Chinese government that would require adult children to visit their parents or risk being sued by the state for their neglect. This is a serious problem in China, which lacks affordable elder care despite an eighth of the population being over sixty.

In British Columbia, where we do have a socialized system of health care and elder care options, we are of course proceeding in the opposite direction. Not only do we not have a law requiring adult children to visit their parents, our law requiring adult children to support to their parents was repealed by ss. 258 and 482 of the Family Law Act on 24 November 2011.

See the CBC report or the Financial Post report for further discussion of this innovative new law.

28 December 2012

New Code of Professional Conduct in Force in January

The new Code of Professional Conduct (PDF), the primary ethical guide governing the conduct of lawyers in British Columbia, will be in effect on 1 January 2013. The new Code will replace the Professional Conduct Handbook, which has provided guidance to lawyers for the last twenty years.

According to an article published in the Law Society's newsletter Benchers' Bulletin, the rational for the new Code stems from the need to harmonize ethical standards among the provinces and territories to allow lawyers to more easily practice in multiple jurisdictions. The Code is based on a model code of conduct developed by the Federation of Law Societies of Canada which has already been adopted in Alberta, Manitoba, Newfoundland and Labrador, Nova Scotia and Saskatchewan.

The Benchers' Bulletin article gives the impression that not much has changed between the Handbook and the new Code:
"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.

12 December 2012

Time Running Out to Complete Important CBA/NJI Survey

A few weeks ago, the Canadian Bar Association distributed an invitation to members of its family law section to participate in a survey being conducted by the National Judicial Institute. Time is running out; the survey will close on Friday 14 December 2012.

The NJI is the primary national organization providing continuing judicial education and the survey is timed for use at the Institute's family law seminar in February 2013. The survey is of particular importance for family law lawyers as it concerns the most difficult of all problems, the enforcement of orders and agreements for access. According to the introduction to the survey,
"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?"
If you are a lawyer practicing family law to any significant extent, please complete the survey. It is relatively short and likely won't take more than 15 minutes to complete.

The survey, which is intended for lawyers only, can be found here: survey closed.

06 December 2012

Mediate BC Launches Program Addressing Support for Adult Children

Mediate BC has announced the launch of a new pilot project — the Child Support Eligibility Mediation Project — intended to address the often contentious issue of child support in respect of children who have reached or are approaching the age of majority. According to the society's statement, the aim of the program is to "help separated families resolve disputes concerning the eligibility of adult children for child support and special expenses" by creating an educational plan with the assistance of a mediator.

The service free and is available to separated parents whose children are either in Grade Twelve or are nineteen and older and enrolled in a post-secondary program.

The Child Support Eligibility Mediation Project is being carried out in collaboration with the Family Maintenance Enforcement Program and is funded by the Law Foundation of British Columbia and the Director of Maintenance Enforcement.

04 December 2012

Attorney General Appoints Nine New Provincial Court Judges

Attorney General and Minister of Justice Shirley Bond has today appointed nine new judges to the Provincial Court bench. According to the Ministry's press release, Surrey will be getting two judges and Kamloops, North Vancouver, the Northeast district, Port Coquitlam and Vancouver will each get one judge. Two judges will be assigned to work out of the Office of the Chief Judge.

The new judges, almost of whom have backgrounds in criminal law, will bring the judicial complement of the court up to 131.80 full-time equivalent judges, only 12 fewer judges than the court's complement in 2005. 

The Chief Judge, in a statement (PDF) released later today, observes that a number of vacancies are foreseeable over the course of 2013 because of judges retiring or moving to part-time status and notes that the increase in the number of Provincial Court judges resulting from the new appointments will be short lived as a result:
"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."

29 November 2012

Salvation Army Pro Bono Program Shut Down

I am very sorry to report that the Salvation Army's pro bono legal advice program has shut down. Although I understand that self-sufficient regional clinics may be maintained, the clinics run out of the program's central Vancouver office at Belkin House, such as the clinics at the Robson Square Provincial Court registry and the Caring Place in Maple Ridge, are terminated effective immediately. This is a really disappointing development; the program was run very efficiently and served thousands of people, and I've been volunteering with the program since 2002.

This would seem to leave Access Pro Bono as the last independent provider of full-service legal clinics in the province. (Help can also be had from the UVic and UBC legal advice programs, and from the countless community-based programs run by organizations like the Battered Women's Support Services and the YWCA.) Lawyers volunteering with the Salvation Army program should sign up with Access Pro Bono's summary legal advice program as soon as possible.

28 November 2012

Regulations to Family Law Act Published

The orders in council implementing the regulations required by the new Family Law Act were made on 23 November 2012 and published on 26 November 2012.

The regulations will, as of 18 March 2013, the day the Family Law Act comes into force, repeal the regulations under the old Family Relations Act and replace them with the Family Law Act Regulation (PDF) and the Family Law Act Pension Regulation (PDF). A host of regulations to other statutes, from the Contaminated Sites Regulation to the International Business Activity Regulation, are amended to accommodate the Family Law Act by orders in council 798 to 846 (PDF).

The Family Law Act Regulation deals with:
  1. the provincial employees able to work as family justice counsellors and the information and documents required for their work;
  2. the minimum training standards required for professionals working as mediators, arbitrators and parenting coordinators under the Family Law Act;
  3. the adoption and adaptation of the federal Child Support Guidelines for use in British Columbia under the Family Law Act;
  4. the continuing work of the Child Support Recalculation Service out of the Kelowna registry of the British Columbia Provincial Court;
  5. the forms required for the appointment of standby and testamentary guardians under ss. 55 and 53 of the act; and,
  6. fixing $10,000 as the limit of the value of children's property which can be managed by a guardian without court order under s. 178 of the act;
According to the press release from the Ministry of Justice, the training standards required for professionals working as mediators, arbitrators and parenting coordinators consist of:
"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.

It is not entirely clear what fate will befall non-lawyers who have not taken the training required by the deadline. At a minimum, it seems to me that such people will not be "mediators," "parenting coordinators" and "arbitrators" to whom the court can refer people under the Family Law Act and, in particular, that the awards of people working as arbitrators and the determinations of people working as parenting coordinators will not be "awards" or "determinations" capable of enforcement under the act.

The Ministry of Justice has published a new page on its website explaining the new regulations.

21 November 2012

New Provincial Court Report: Fewer judges now than in 2010

The Provincial Court of British Columbia has quietly published an updated document (PDF) detailing both new judicial appointments and judges lost to the court between 30 September 2010 and 31 October 2012.

Boiling it all down, the numbers show that the court has a judicial complement of 123.80 full-time equivalent judges now, three judges less than the complement of 126.30 the court had this time in 2010, and twenty judges below the 143.65 judges the court had in 2005.

In 2010, the court published a powerful a report detailing the effects of the short judicial complement on the administration of justice, Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources (PDF), which ought to be mandatory reading for anyone with an interest in Provincial Court matters. The conclusion reached by the court is short and to the point:
"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.

20 November 2012

Competition Heats Up for Family Law Arbitrator Training

The Continuing Legal Education Society of British Columbia, the preeminent provider of legal education for lawyers in the province, has just announced a training opportunity for family law lawyers wanting to practice as arbitrators, mere days after information about a similar course being released by the BC Arbitiration and Mediation Institute; see my post below. CLE's offering is scheduled to run from Tuesday 5 February to Saturday 9 February 2013 at a standard rate of $1,950, about $1,000 cheaper than the BCAMI offering and two weeks earlier.

So far, what we know about the two courses is that CLE's course will be taught by Lorne Wolfson, a respected family law lawyer and arbitrator from Toronto. BCAMI's course (DOC) was designed and will be taught by British Columbia family law lawyers and arbitrators, who I expect will include Glen Bell, Jane Henderson and Craig Neville. The CLE course will also leave you with a copy of the 5th edition of Lorne's book, Family Mediation, Arbitration and Collaborative Practice Handbook.

19 November 2012

MediateBC Releases Updated Guidelines for Distance Mediation

MediateBC has announced the release of the Distance Family Mediation Project’s second edition of Mediating from a Distance: Suggested Practice Guidelines for Family Mediators (PDF). According to the blog post announcing the release:
"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.

07 November 2012

BCAMI Family Law Arbitrator Training Set for February 2013

The British Columbia Arbitration and Mediation Institute has been working to develop training (DOC) for family law arbitrators since the Family Law Act became law last November. They must be ready to go, because the first session is set for five days beginning on 18 February 2013. I understand that the cost will be just under $3,000.

Unfortunately, I don't know much more about the BCAMI's new offering apart from this. BCAMI's ordinary arbitrator training is given in Vancouver by esteemed lawyer and arbitrator Glen Bell and requires three separate sessions running to a total of eight days, or two sessions and a total of five days for lawyers. I took my arbitrator training with Glen and thought that the program was excellent.

Arbitration is one of the "family dispute resolution" processes discussed in the new legislation, along with mediation, collaborative processes and parenting coordination. The Family Law Act will make a number of consequential amendments to the Commercial Arbitration Act to make it more friendly to the arbitration of family law disputes.

30 October 2012

Family Law Act: New Resource for Justice System Workers and Advocates

I've put together an overview (PDF) of the new Family Law Act for people who work in the justice system and legal advocates. Please feel free to download and to distribute, reproduce and reuse as you'd like, as long as it's not for a commercial purpose.

This overview will be updated from time to time to clarify issues and correct typos. The current version is dated 7 November 2012 (previous version - 3 November 2012); please download the updated document (PDF).

17 October 2012

Legal Aid Publishes Booklet on Family Law Act

The Legal Services Society, the organization providing legal aid services in British Columbia, has announced the publication of a new booklet, Guide to the New BC Family Law Act (PDF). The booklet is based on a series of posts on the legislation published between February and September this year on the Electronic Legal Aid News blog, and is written in accessible plain language.

LSS has done a great job discussing and publicizing the Family Law Act. The society's Family Law in British Columbia website in particular is an extremely useful resource.

06 October 2012

Family Law Act: Changes to Rules of Court

The Ministry of Justice, in its increasingly useful webpage on the new Family Law Act, has posted information about changes to the Supreme Court Family Rules and the Provincial Court (Family) Rules that will come into effect on 18 March 2013 at the same time as the new legislation.

Rule Changes

The amendments to both courts' rules include:
  • implementing the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests);
  • addressing the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders); 
  • addressing new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators); and,
  • deleting reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability).
Provincial Court Rules

Additional amendments are made to the Provincial Court (Family) Rules, unrelated to the new legislation, largely to correct minor errors and inconsistencies and improve to overall clarity of the rules. Among the more significant amendments are:
  • allowing service by email;
  • allowing service of applications outside British Columbia;
  • requiring addresses for service when filing applications and motions;
  • allowing lawyers to search court files; and,
  • allowing the electronic filing of documents.
Consequential changes are made to the forms required by the rules, including those used to commence and reply to a court proceeding, the form used to commence a motion and financial statements. According to an announcement from the Attorney General, a more complete overhaul of the rules is anticipated at some point in the relatively near future, perhaps in 2013 or 2014.

For the exact details of the current changes to the rules and forms, read the Order in Council (PDF) that will implement the changes. For a general introduction, read the ministry's overview (PDF).

Supreme Court Rules

Additional amendments to the Supreme Court Family Rules include:
  • requiring personal service of applications to set aside agreements; and,
  • addressing and assessing awards of expenses.
Consequential changes are made to the forms required by the rules, including those used to commence and reply to a court proceeding, the form used to commence a motion, the forms used for restraining orders, financial statements and the forms used in the divorce process.

For the exact details of the changes to the rules and forms, read the Order in Council (PDF) that will implement the changes. For a general introduction, read the ministry's overview (PDF).

30 September 2012

The Self-Represented Litigant's Bill of Rights ...and Responsibilities

Today I've launched a new page in this blog, The Self-Represented Litigant's Bill of Rights ...and Responsibilities, to which you'll find a link in the list at the upper right-hand portion of this page with a much briefer title, "The Litigant's Bill of Rights."

The purpose of the page is to describe the expectations self-represented persons ought to have of the people they meet on the way through a court proceeding: the court staff who assist in court processes, the lawyers who may act for the other parties, and the judges and masters who hear case conferences, applications and trials. The page also describes self-represented persons' obligations to learn about court processes and procedures and the law that applies to the proceeding they are involved in, and to treat court staff and judges with courtesy and respect.

This page is a bit of a work in progress. It represents only my views and opinions, and I fully expect that others will take a different perspective on things; in all likelihood I have put emphasis in the wrong place and overlooked things that should be discussed. I welcome your comments, questions and criticism.

This page is a contribution to the larger discussion I think we need to have about the functioning of the justice system in a tough economic climate where lawyers are becoming increasingly unaffordable and both the courts and legal aid programs have become distressingly understaffed and underfunded. As such, the page may be reused, republished and redistributed without restriction.

29 September 2012

Alberta Associate Chief Justice Releases Dissertation on Maverick Litigants

Associate Chief Justice Rooke of the Alberta Court of Queen's Bench has just published his decision in Meads v. Meads. This decision is remarkable and should be, I suggest, required reading for judges, lawyers, court administrators and court clerks across the country.

The judgment in Meads is a treatise, a manifesto and a cri de coeur addressing a certain sort of disaffected, maverick litigant which has been clogging up Canada's courts with contrived, pseudolegal arguments and irrational, histrionic demands for a number of years. Mr. Justice Rooke's judgment identifies, analyses and deconstructs the arguments of vexatious litigants variously known as Detaxers, Freemen or Freemen-on-the-Land, Sovereign Men or Sovereign Citizens, members of the Church of the Ecumenical Redemption International and Moorish Law adherents, and makes recommendations as to how the court should manage such litigants.

The common theme among these groups of litigants, who Mr. Justice Rooke collectively refers to as "Organized Pseudolegal Commercial Argument litigants," is that they believe themselves to be privy to some secret legal principles which allow them to evade the normal rules and regulations that bind every other member of civil society. These people — and I have encountered them in my practice — drape themselves in cobbled-together pseudolegal verbiage and concepts, such as describing themselves as "corporate entities" or "juristic persons," claiming copyright over their own names and spelling their names with add-on hyphens and colons (the husband in the case before Mr. Justice Rooke, for example, referred to himself as "::Dennis-Larry:Meads::"), and filing bogus pseudolegal documents festooned with gibberish and meaningless symbols, such as thumbprints, multicoloured ink, pompous phrases set in capital letters, stamps and references to inapplicable, foreign or repealed statutes. Mr. Justice Rooke describes a number of improbable hypotheses common to these litigants, including:
  1. that the Canada Revenue Agency has tricked persons into believing there is an obligation to pay tax;
  2. that various deficiencies in judicial oaths prohibit court action;
  3. that the relationship between the state and a person is a contract which one can opt out of;
  4. that legislation, the common-law, and court principles and procedures are trumped by divinely ordained rules and principles;
  5. that taxes and civil liabilities only attach to a “corporate name” and not physical persons;
  6. that the courts have no power over litigants until they surrender to the courts; 
  7. that state actors require the consent of persons, any state activity without consent is oppression; and,
  8. that public notaries possess a judge-like authority that displaces the authority of Canadian courts.
After an exhaustive review of the many cases across Canada dealing with these and other favourite arguments, Mr. Justice Rooke concludes that the theories of Organized Pseudolegal Commercial Argument litigants have never gained purchase in a Canadian court.

Mr. Justice Rooke goes on to point out certain common linguistic, documentary, analytic and behavioural hallmarks of these litigants, and suggests a number of procedural devices that can be employed by the courts to manage and curb their excesses.

Court Staff:
  1. Reject documents and materials that do not conform to established standards.
  2. Mark non-compliant materials as "received" rather than "filed."
  3. Forward potentially non-compliant materials to a judicial officer for review before filing.
The Judiciary:
  1. Strike actions, applications and defences that are frivolous or vexatious.
  2. Award punitive damages where the litigant's conduct is high-handed, abusive or oppressive.
  3. Award elevated costs in favour of opposing parties to off-set their increases legal expenses resulting from the litigant's conduct.
  4. Make orders that the litigant post security for costs at an early stage of the litigation.
  5. Adopt tight approach to case management and assign a single judge to manage the case through to trial.
  6. Consider whether the character and nature of the litigation warrants a finding that the litigant is frivolous and vexatious and should be barred from commencing further proceedings without leave.
  7. Restrict who may appear as a representative or agent of the litigant.
It isn't particularly difficult to extrapolate from these comments principles of use to lawyers and self-represented parties dealing with such litigants. May I suggest:

  1. Apply to the chief justice for an order appointing a case management judge early on.
  2. Consider whether the litigant's claim or defence discloses a legitimate cause of action or defence and apply to strike if it does not.
  3. Do not waste your client's money replying to nonsensical pleading or applications in the same voluminous manner as the litigant's material, consider applying for directions.
  4. Consider applying for security for costs, bearing in mind the generally high threshold that must be reached before such orders will be made. Search for other reported cases involving the same litigant.
  5. Carefully scrutinize the background and motivations of persons seeking approval to appear as a representative or agent, and object where the person is going to exacerbate the situation.
Finally, the concluding remarks of Mr. Justice Rooke deserve repetition:
[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.

19 September 2012

The Cleavers Are Moving Out: StatsCan reports on the changing face of the Canadian family

Statistics Canada has published the results of the 2011 Census, and its analysis of the changing makeup of the Canadian family is worthy of note. As CBC's article on the analysis pithily notes, "the nuclear family is no longer the norm in Canada."

The newsbite summary of Statistics Canada's conclusions says this:
  • Married-couple families were the predominant family structure in 2011, at 67.0%. For the first time, there were more common-law-couple families in 2011, 16.7%, than lone-parent families, 16.3%.
  • The 2011 Census of Population counted 64,575 same-sex couples. In 2011, 32.5% of same-sex couples were married, nearly double the 2006 share. The 2006 to 2011 period marks the first five-year period during which same-sex couples could legally marry, following the legalization of same-sex marriage for all of Canada in July, 2005.
  • Stepfamilies were counted for the first time in the 2011 Census of Population, providing a more detailed portrait of Canadian families. There were 464,335 stepfamilies in 2011, or 12.6% of couple families with children aged 24 and under.
  • For the first time, there were more one-person households in 2011, 27.6%, than couple households with children aged 24 and under, 26.5%.

16 September 2012

Supreme Court Releases Decision on the Naming of Children

On Friday, the Supreme Court released its decision in Landa-McAuliffe v. Boland which addresses, among other things, the factors the court should take into account when being asked to name a child. The factual background behind this aspect of the case is neatly summarized by the court itself:
[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.
Yes, people really do go to court with problems like this.

In analyzing the father's request, the court firstly concludes that it has parens patriae jurisdiction to make decisions about the naming of children. Parens patriae means "parent of the country" and refers to the supreme court's inherent jurisdiction to make decisions respecting people under a legal disability, although the phrase is most commonly used in reference to children.

Next, the court references the considerations set out in a 1985 case from Alberta, Wintemute v. O’Sullivan, to be taken into account when the court is asked to make decisions about naming children:
  1. the welfare of the child;
  2. the short and long term effects of a change in the child’s surname;
  3. any embarrassment the child might suffer if the surname is different from that of the custodial parent;
  4. the potential for confusion of identity;
  5. the effect of change of name on the child; and,
  6. the effect of frequent or random changes of name.
The court then cites a 2010 decision from New Brunswick, L.M.D. v. J.R.S., which addressed the issue of hyphenated surnames:
[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:
  1. the surname of either parent; or,
  2. a surname consisting of both parents' surnames hyphenated or combined in alphabetical order.
The court then, quite sensibly, concludes that the child should have the hyphenated surname Boland-Landa, for these reasons:
[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:
  1. if only one parent registers the birth, the child's surname is the name chosen by that parent, which could be any name;
  2. if two parents register the birth, the surname is whatever name they agree on;
  3. if the parents cannot agree on the name, the surname must be either the parents' surname if they have the same surname, or, if they have different surnames, the parents' surnames either combined or hyphenated in alphabetical order; and,
  4. a hyphenated surname must not consist of more than two names, even if one of the parents has a hyphenated surname.
The chief executive office of the Vital Statistics Agency retains discretion about the registration of names under s. 9 of the act, and may refuse to register a name if the name that a parent wishes to give to a child:
  1. might cause mistake or confusion,
  2. might cause embarrassment to the child;
  3. is sought for an improper purpose; or,
  4. "is, on any other ground, objectionable."
That last factor is pretty broad. I'm not sure that Harper Seven, Blue Ivy Carter, Zuma Nesta Rock, Dweezil or Moon Unit would have made it through in British Columbia.

13 September 2012

Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting

Proposed Practice Requirements 

On Friday 7 September 2012, the Law Society's Family Law Task Force released its recommendations (PDF) on the qualifications lawyers should be required to have before being able to practice as family law arbitrators, family law mediators and parenting coordinators as provided under the new Family Law Act. The proposed qualifications are rigourous, and, I suspect, appropriately so.

Family Law Arbitrators

The Task Force recommends that lawyers practicing as family law arbitrators have 10 years of practice or experience as a judge or master, sufficient knowledge and skills to arbitrate family law matters in a competent manner, 40 hours of training in arbitration, 40 hours of training in mediation and 14 hours of training in family violence. Arbitrators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

Family Law Mediators

Lawyers practicing as family law arbitrators should have sufficient knowledge and skills to mediate family law matters in a competent manner, 80 hours of training in mediation and 14 hours of training in family violence. Mediators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

Parenting Coordinators

Lawyers practicing as family law arbitrators should have 10 years of practice or experience as a judge or master, sufficient knowledge and skills to act as a parenting coordinator in a competent manner, 40 hours of training in parenting coordination, 40 hours of training in arbitration, 80 hours of training in mediation and 14 hours of training in family violence. Parenting coordinators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

The recommendations of the Task Force must be approved by the Benchers of the Law Society.

Fall Sitting

The CBC reports House Leader and former Attorney General Mike de Jong as saying that the provincial legislature will not sit this fall. As a result, no amendments to the Family Law Act can be tabled until the spring sitting in 2013; the act is scheduled to come into force on 18 March 2013.

Update: 17 September 2012

According to a newsletter distributed by the Law Society today, the recommendations of the Family Law Task Force were approved by the benchers at their meeting on 7 September 2012. Lawyers currently practicing as mediators, arbitrators and parenting coordinators are advised to look at the grandfathering provisions of the recommendations.

07 September 2012

Access Pro Bono Drop-In Legal Advice Events

Access Pro Bono's annual open-air legal advice event is running today in Vancouver from 10:00am to 5:00pm at Victory Square Park, at 200 West Hastings Street. The free event is intended to facilitate access to justice for low- and modest-income people, including the homeless, on all legal issues and to raise money to support the organization's programs through pledges raised by the volunteer lawyers.

The even repeats in New Westminster from 10:00am to 2:00pm on 11 September 2012 at Hyack Square, in Kelowna from 10:00am to 2:00pm on 14 September 2012 in the City Park, and in Victoria from 10:00am to 2:00pm on 18 September 2012 at Centennial Square.

Access Pro Bono raised over $50,000 for pro bono programming in British Columbia last year, and hopes to raise $60,000 this year. For more information visit the event website.

04 September 2012

Trio Tie the Knot in Brazil

CNN reports that a public notary in Brazil has "set off a firestorm" by granting a civil union registration to a trio composed of one man and two women. According to the article, the three live together and love one another like persons in any other cohabiting relationship, and granting the registration will give the trio the legal benefits of marriage and recognition as a family unit.

This raises of course, a question that has been waiting to be raised in British Columbia for some time now. The Family Relations Act defines "spouse" as including married spouses and persons for have "lived with another person in a marriage-like relationship for a period of at least 2 years." Nothing in this definition says that you can't be living with more than one person in a marriage-like relationship, although I think you would have to read the definition as establishing separate spousal relationships among the parties to the relationship. In other words, A would be in a spousal relationship with B while simultaneously being a spousal relationship with C, and B and C would have a spousal relationship of their own. The definition of spouse in the Family Law Act also allows for this eventuality.

The point, of course, is that being in a spousal relationship provides certain legal entitlements that arise on the breakdown of that relationship. Under the Family Relations Act these involve spousal support and obligations in respect of stepchildren. Under the Family Law Act, unmarried spouses will also be entitled to share in family property.

My thanks to my friend and colleague Agnes Huang for sharing the CNN article with me.

27 August 2012

Guest Column: "Six Tips for Single Parents with Back to School Children"

by Lois Tarter

Summer is almost over and a new school year is on the horizon. The back to school divorced parent has a lot to deal with by the time the first school bell rings. When a new school year kicks off there are adjustments for kids and parents alike in any household. Here are six helpful tips that will get you through the tough transitional process this school year.

Don’t Burn Out: No need to take on the world. In the end, you will wind up getting burnt out. A single parent needs to take a steady, but comfortable pace and they will win the race.

Coordinate: Reach out to other parents and find out how you can all work together as a team. There are sure to be many rides to sports events, practices and parties, so coordinating with the other parents will help out tremendously.

Teamwork at Home: Working together as a family at home after school will make everything run much more smoothly. For example, if you and your ex washed the dishes after dinner it’s now time to bring one of your children into the fold. Kids have lots of energy and they want to learn, so pass a dish to dry and get them involved.

Teacher’s Pet:
Let your children’s teacher know that you are divorced and navigating this school year as a newly single parent. They may have some helpful tips for you. Also, it’s your kids first school year with single parents. Maybe the teacher can let you know if there are any behavioral changes in your child because they are also going through a tough adjustment.

Meet with Your Ex:
With the school year about to be in full swing, it’s important to have a meeting with your ex! There are lots of things to cover from back to school clothes to weekend visits to sporting events. No matter how you may feel about your ex, you’re still parents and the better communication you have about the children the better it will be for everybody at the end of the day.

Back to School Night: You and your ex will probably see each other at back to school night and parent teacher conferences throughout the year. Don’t make it back to school fight! Keep it civil and focused on the well-being of your children for this school year.

About Lois Tarter

Lois Tarter has a Bachelor of Arts Degree in Sociology and a Master’s Degree in Alternative Dispute Resolution. After receiving her Master’s Degree in Alternative Dispute Resolution, Tarter worked as a Mediator for the City Attorney’s office in Los Angeles.

Lois has written articles about divorce for such popular publications as The Huffington Post, SheKnows and More magazine. For more information, visit TheDivorceRitual.com and Twitter.com/LoisTarter.

23 August 2012

Unmarried Couples, the Division of Property and the New Family Law Act

Courthouse Libraries BC has posted a short comment of mine on how the transitional provisions of the Family Law Act are going to work with unmarried couples' existing property claims. Read the post on Courthouse Libraries' blog, The Stream.

19 August 2012

Kerr v. Baranow 2.0: Supreme Court Releases Second Trial Decision

Ms. Kerr and Mr. Baranow are one of those unfortunate couples, like Mr. and Mrs. Hartshorne and Ms. Rick and Mr. Brandsema, whose legal battles have doomed them to fame within the family law bar. The Supreme Court has just published its second trial judgment addressing the matters arising from their 2006 separation.

At the original trial in 2007, Ms. Kerr applied for spousal support and a trust interest in property owned by Mr. Baranow. As the parties were unmarried, Ms. Kerr could not avail herself of the property provisions of the Family Relations Act and was forced to rely on the awkward and general unsatisfactory equitable principles of unjust enrichment. The trial judge made an order for retroactive spousal support, and, finding that Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, gave her a one-third interest in a property owned by Mr. Baranow worth about $950,000 for a total cash award of $315,000 plus costs.

Mr. Baranow appealed. The appeal judgment was released in 2009, and allowed Mr. Baranow's appeal from the cash award and the retroactive aspect of the order for spousal support.

This time, Ms. Kerr appealed. The Supreme Court of Canada released its judgment in 2011, restoring the trial judge's decision on spousal support, ordering a new trial on Ms. Kerr's unjust enrichment claim, and giving Ms. Kerr her costs of the proceedings to date. The reasons of Mr. Justice Cromwell are a masterful restatement and modernization of the law on unjust enrichment and are required reading for law students throughout Canada.

The second trial judgment was released last week. The court applied Justice Cromwell's decision with rigour and exactitude, and reached almost the same conclusion as the original trial judge: Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, and she would be entitled to a one-quarter interest in Mr. Baranow's property, for a total cash award of $240,000 plus costs. 

The money likely spent over five years, two trials and a trip to the Supreme Court of Canada to achieve a result $75,000 off the original judgment is worth some reflection... as are the costs awards owing by Mr. Baranow to Ms. Kerr.

18 August 2012

Supreme Court Releases Decision on Property Claims, Separation Agreements and Indepedent Legal Advice

The Supreme Court has recently released its decision in Giebelhaus v. Giebelhaus, a case in which the husband asked the court to divide property, in the face of a separation agreement he had signed on the subject, under s. 65 of the Family Relation Act. As usual, I'm not so much interested in the particular facts of the case as I am in the court's review of the law.

The court reviewed two important decisions, J.K.T. v. A.J.T., a recent case of our Supreme Court, and Hartshorne v. Hartshorne, a 2004 case of the Supreme Court of Canada. In J.K.T., the court outlined the principles to be considered on applications under s. 65:
[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.
The court then quotes Hartshorne for the basic test to determine the fairness of marriage agreements (important bits in bold):
[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.

The court then applied the second stage of the Hartshorne test to see whether the separation agreement was fair in light of the factors set out in s. 65(1) of the Family Relations Act. This is what s. 65(1) says:
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 
(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.
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.

There was, however, one other wrinkle in this case: the husband had obtained independent legal advice in signing the agreement — a fact relied on by the wife in her defence of the agreement. The husband claimed the advice he received was in adequate and that, as a result, he did not fully understand the wife's financial circumstances when he made the decision to sign the separation agreement.

This gave the court the opportunity to discuss the meaning and necessary content of independent legal advice when executing family law agreements (cites omitted):
[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 lesson from Giebelhaus for counsel is simple:
  • ensure you understand the circumstances surrounding the agreement;
  • advise the client as to his or her rights and obligations in relation to the topics covered in the agreement;
  • advise the client as to the consequences of not signing the agreement; and,
  • give the client your opinion as to whether it is appropriate for the client to sign the agreement in all of the circumstances.
The lesson for parties seeking independent legal advice is more important:
  • not having legal advice will not necessarily let you out of an agreement you have signed; however,
  • having legal advice will not leave you stuck with an invalid or unfair contract, especially if the advice you got was substandard.
In other words, although ensuring that your spouse gets independent legal advice will help to prevent your spouse from claiming "I didn't know what I was doing" to get out of an agreement, if the agreement is fundamentally bad or unfair, all the legal advice in the world won't bullet-proof your agreement.

16 August 2012

Guest Column: "Pros and Cons of Divorced Parents Sharing a Nanny"

by Maryanne Williams

Even the most amicable divorce is likely to leave your children feeling confused and disillusioned, especially if that divorce contributes to a shift in economic status or is the driving force behind a move from the home they’ve grown up in. Because a divorce may facilitate the need for a previously stay-at-home parent to return to the workforce, it may also leave parents in need of a full-time childcare provider. Sharing a nanny with your ex certainly has its pros and cons; however there are a few things to consider before making your final childcare decision.

Pros of Sharing a Nanny with Your Ex-Spouse

If your nanny was an established part of your kids’ daily routine before you separated from your ex, then she’s likely to be one of the few remaining bits of stability they can cling to. When so much else has changed in their life, being cared for by the same person that they’ve known and loved since before their family and household dissolved can make the transition easier for some children. Nannies that are able to remain neutral and avoid choosing sides can also prove to be very valuable mediators in times of tension, which are unfortunately quite common, especially in the earliest stages of a divorce.

Maintaining a stable and reliable schedule can be particularly difficult for parents that share joint custody, as children are forced to split their time between two separate homes and adapt to the changing personal schedules of the two separate parents that once functioned as a unit. When Nanny accompanies kids from one home to another, and sees to their needs and well-being just as she always has, the transition from one home to two can be made significantly smoother. Parents can also avoid scheduling confusion regarding picking kids up from and dropping them off at after-school activities, sports practices, or lesson rehearsals by delegating the task to one neutral party. Few things add insult to the existing injury of a divorce in the family like being lost in the shuffle between them and left at school or forgotten at practice, but it can happen when two people are still in the process of ironing out the proverbial kinks in scheduling that accompany joint custody.

Nannies that spend the majority of each day with their charges are also intimately familiar with the comfort objects, favorite toys, and other details that might be forgotten when bags are packed by parents for shuffling between homes. These aren’t as likely to slip Nanny’s mind making them less likely to be forgotten. She can also offer reassurance to kids by being nearby despite the relative unfamiliarity of new homes and neighborhoods. If you’re both forced to move from the home that your children grew up in, your kids may also be separated from the neighborhood playmates that they’ve maintained friendships with for most of their lives, and neither you nor your spouse is likely to have time for ferrying kids between play dates. This is another situation in which your nanny is worth her weight in gold: by making herself available to both you and your ex, she will be able to help your kids stay in touch with the friends that they might otherwise grow apart from.

Finally, sharing the expense of Nanny’s salary may be the only way to make the arrangement financially feasible; a major plus if you’re committed to avoiding center-based daycare.

Cons of Sharing a Nanny with Your Ex

Despite the stability and familiarity that your nanny provides to your children during the tumultuous divorce proceedings and their aftermath, there are a few drawbacks to sharing her with your ex-spouse. The biggest concern is her ability to remain neutral, because she will be in the unique position of either quelling or fanning the flames of continued conflicts by sharing sensitive information that she’s privy to through her regular contact with both parties. This can be particularly damaging if you’re still in the process of finalizing your divorce, especially if it’s a bitter one.

Sharing a live-in nanny could also create the necessity for an additional private bedroom, which may create a financial strain for parents that are already cash-strapped as a result of their divorce. In post-divorce dwellings, on both sides of the fence, space can be at a premium. Still, the days of Nanny sleeping in the same room as her charges are long over; if you intend to retain a live-in nanny, you may both need to provide a private space for her to decompress in and relax away from the demands of her job. Those demands may be exponentially increased when she’s forced to play intermediary between battling divorcees, which also increases her risk of burn out.

Ultimately, the decision to share your nanny with your ex-spouse is one that must be made by the three of you, and with full disclosure by all parties about expectations and responsibilities.

Despite the stability and familiarity that your nanny provides to your children during the tumultuous divorce proceedings and their aftermath, there are a few drawbacks to sharing her with your ex-spouse. The biggest concern is her ability to remain neutral, because she will be in the unique position of either quelling or fanning the flames of continued conflicts by sharing sensitive information that she’s privy to through her regular contact with both parties. This can be particularly damaging if you’re still in the process of finalizing your divorce, especially if it’s a bitter one.

Sharing a live-in nanny could also create the necessity for an additional private bedroom, which may create a financial strain for parents that are already cash-strapped as a result of their divorce. In post-divorce dwellings, on both sides of the fence, space can be at a premium. Still, the days of Nanny sleeping in the same room as her charges are long over; if you intend to retain a live-in nanny, you may both need to provide a private space for her to decompress in and relax away from the demands of her job. Those demands may be exponentially increased when she’s forced to play intermediary between battling divorcees, which also increases her risk of burn out.

Ultimately, the decision to share your nanny with your ex-spouse is one that must be made by the three of you, and with full disclosure by all parties about expectations and responsibilities.

About Maryann Williams

Maryannn Williams is an ex-nanny. Passionate about thought leadership and writing, Maryanne regularly contributes to various career, social media, public relations, branding, and parenting blogs and websites, including www.shareananny.com where this article was originally published. She also provides value to nanny service by giving advice on site design, as well as features and functionality, to provide more and more value to nannies and families across the U.S. and Canada. She can be found at william.mary11@gmail.com.

01 August 2012

BC Courts Release Policy on Use of Electronic Devices

The courts of British Columbia have today released a rare joint policy statement (PDF) on the use of electronic devices in courtrooms which will take effect on 17 September 2012. Here's a summary.

Prohibited Uses of Electronic Devices
  1. The use of electronic devices — defined as anything capable of recording or transmitting audio or data — to "transmit or receive text" is prohibited except as permitted by the policy statement.
  2. The use of electronic devices to record images or video is prohibited.
  3. The use of electronic devices to transcribe proceedings in court is prohibited.
  4. The use of electronic devices in a manner that interferes with courtroom electronics or courtroom decorum is prohibited.
Permitted Uses for the General Public
  1. Any person may unobtrusively transmit or receive text in a courtroom of the Court of Appeal.
Permitted Uses for Lawyers and Accredited Media
  1. Lawyers and accredited members of the media may unobtrusively transmit or receive text in a courtroom of the Supreme Court and Court of Appeal.
  2. Accredited members of the media may record proceedings in any courtroom for the sole purpose of verifying their notes.
Nothing in this policy statement restricts the autonomy of individual judges to manage their courtrooms and the proceedings before them. Nothing in the policy statement alters the effect of any publication bans or sealing orders that may be in effect in respect of a proceeding.

Update: 2 August 2012

Ian Mulgrew has published an article on the Vancouver Sun website on the courts' new electronic device policy which begins as follows:
"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. 

The concern about allowing someone to tweet from inside a courtroom, or email or text for that matter, is that the person could be sending information about the evidence being presented in court to influence the evidence of a subsequent witness, intimidate the witness into recanting or altering his or her evidence, or otherwise frustrate the trial process and the frankness of the testimony presented. It was likely for this reason that no prohibitions on tweeting or texting were imposed for Court of Appeal proceedings since the Court of Appeal does not hear oral evidence; the only courts subject to the prohibition are the two trial courts.

In other words, the likely purpose of the policy was to balance modernization of the court's approach to new technology against the risk to the integrity of the trial process. Like I said, it had nothing to do with "judicial snobbery."

28 July 2012

Paying the Fees of Child Advocates

A "child advocate" is a lawyer hired to represent the interests of a child in a family law dispute between the child's parents. (Once upon a time, the court could have appointed a "family advocate" under s. 2 of the Family Relations Act, however the provincial government defunded this program years ago.) I have been retained as a child advocate and it is a challenging but very rewarding role.

My friend Agnes Huang has pointed me to a very interesting case from the Supreme Court in 2010, C.L.M. v. D.J.M., on the issues of whether and how the cost of a child advocate should be paid by the parties.

In this unsual case, a master had given permission for the child advocate to appear on behalf of the child prior to the court hearing. The lawyer was paid by the wife. The wife was successful at the hearing and received an order that she have her costs of the application. The wife then, and this is the important part, said that the husband should have to pay for the cost of the child advocate as part of her costs.

The court said this about the child advocate:
[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:
  1. previous court approval: whether the presence of the child advocate received prior court approval;
  2. neutrality of appointment or funding: whether the child advocate was chosen and/or funded by one of the parties;
  3. consent: whether both parties consented to the appointment of the child advocate;
  4. impartiality of content: whether, as between the parties, the child advocate was neutral, impartial and objective;
  5. helpfulness of content: whether the child advocate presented evidence or argument before the court that would not otherwise have been available;
  6. ability to pay: if one party has a substantially lower ability to pay, fairness may require that the cost be shared proportionally, or that the party with greater ability to pay incur the expense; and,
  7. success: was one party substantially successful?
Considering these factors, the court held that the wife should be entitled to recover half of her expenses for the child advocate:
[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.]