Court of Appeal Releases Important Decision on Mobility

The Court of Appeal has just released a very important decision on mobility issues which will be required reading for anyone involved with such a problem, at least until the Family Law Act comes fully into force. In R.E.Q. v. G.J.K., the court provides an important review of its key mobility decisions over the last ten years and offers a stinging critique of the convoluted manner in which the law has evolved following the Supreme Court of Canada's landmark decision in Gordon v. Goertz.

In R.E.Q., the father had successfully fought off the mother’s attempt to move with the child from Maple Ridge, British Columbia to Calgary, Alberta at trial. The mother appealed this decision on the grounds that:

• “where the children live primarily with one parent who wishes to move for reasons that are not ‘exceptional’, it is an error in principle for the court to refuse to permit her to move with the children;” 
• “the [trial judge] had given ‘inappropriate weight’ to the desirability of maximum contact with both parents and insufficient weight to the lack of economic necessity for the move, failing to give due respect to [the mother’s] views;” and,
• “trial judge had taken a ‘status quo approach’ which had not allowed consideration of the case ‘in the round’ … [and] it would be ‘unfair’ to deny [the mother] the ability to relocate in Alberta with the children.”

In a somewhat surprising turn of events, given the statistics on the Court of Appeal's treatment of such matters over the last decade and a half, the mother's appeal was rejected.

As usual, I won’t go into the facts in this case but will instead survey the court’s discussion of the law on mobility applications and comments on the views of Rollie Thompson, a much-respected academic who has written extensively on mobility issues. I’ve removed cites and put the particularly important bits in bold.

The Standard of Review of Mobility Applications

“[33] … The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error … it is not for an appellate court to re-weigh the evidence or to interfere on the basis that the appellate court would give more weight than the trial judge did to one factor or another …

“[34] Nevertheless, it is a striking fact that in recent years there have been many successful appeals taken from trial judgments in ‘child mobility’ cases, at least in this province. It may be useful to review some of those cases before considering counsel’s submissions as to how they apply to the facts before us.”

The Inevitable Review of Gordon v. Goertz

"[36] … The Court stated that in an application for the variation of a custody order, a two-stage inquiry is mandated − first, into whether a material change has taken place in the child’s situation, and if so, a consideration of the merits, based on the best interests of the child in the new circumstances, and considering all factors relevant to those interests. …

“[37] The majority went on to observe that unless the custodial parent’s reason for wanting to move is ‘connected’ to his or her parenting ability, it should 'not enter into the inquiry'. It was acknowledged that in both ss. 16(10) and 17(9) of the Divorce Act, Parliament mentions maximum contact between the child and both parents as a factor to be included in assessing the child’s best interests. McLachlin J. emphasized, however, that this principle, while mandatory, was not “absolute”…

“[38] … In summary, the factors to be considered by a court when confronted with an application for a change in a custody or access order were said to include, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

“[39] Ultimately, McLachlin J. stated, the importance of the child’s remaining with the parent to whose custody he or she has become accustomed must be weighed against the continuance of full contact with the child’s access parent, extended family and community. ‘The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new’?”

Gordon v. Goertz in British Columbia

“[41] This court has purported to apply Gordon v. Goertz in a number of cases that were cited to us by counsel in the case at bar − most recently, Nunweiler v. Nunweiler; Falvai v. Falvai; S.S.L. v. J.W.W.; and Hejzlar v. Mitchell-Hejzlar. I do not intend to recite fully the facts of each here, but only to note the principles applied in context. …

“[44] [In Nunweiler], the trial judge was found to have erred in inferring an improper motive to the mother for the move without an adequate evidentiary basis. … Instead, he had focused on the economic interests of the father, failing to give ‘overt consideration’ to the mother’s financial circumstances and to access difficulties that would have arisen if the mother had chosen to return with the child... Further, the trial judge had given insufficient consideration to the benefits for the child of life in [the proposed destination], where she had been living for the previous 12 months; the stable relationship between her mother and her new partner; and the effect on the child of the disruption that would be caused by moving her from her (new) friends and school in [the proposed destination]. Thus this court concluded that the trial judge’s order had been made on a ‘flawed factual basis’ and without correctly applying the principles in Gordon v. Goertz. ...

“[45] In Falvai, … this court held that the trial judge had erred in failing to adopt a ‘blended approach’ to determining the issue of the mother’s proposed move of the child ‘in the context of the parties’ competing custody claims.’ …

“[46] The Court in Falvai also observed that the approach suggested in Nunweiler did not create a two-step analysis, or change the conventional approach to determining custody ‘in an initial application, where there is no pre-existing determination that the relocating parent is the one best suited to meet the child’s needs’. The Court advocated a ‘balancing of all relevant factors, including a parent’s proposed move with the child to a new community’. In the result, it found that … given the mobility of modern society, permanent conditions restricting the movement of a custodial parent should not be imposed ‘except in the rarest of cases’. …

“[49] [In S.S.L. v. J.W.W.] … the trial judge was found to have fallen into ‘what is an easy error in difficult parental mobility cases, to prefer what is seen as the status quo. where the parent seeking to move indicates that he or she will not move without the children. In the analysis of Huddart J.A. for the Court: …

In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother … ; (ii) primary residence with father…; (iii) shared parenting in [the father’s city]; and (iv) shared parenting in [the mother’s city], but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one. …

“[50] As well, the Court emphasized that ‘child-centred evidence’ as to the ‘best parenting arrangements in the circumstances as they are and can reasonably be foreseen’ to be is of particular importance in child mobility cases. …

“[53] [In Hejzlar, this] court again allowed an appeal from the lower court’s order and permitted the mother’s proposed move to take place. …

“[54] The Court found that the trial judge had placed undue weight on the mother’s testimony that she would not move to Edmonton without the child. Saunders J.A. continued:

... I recognize that there may be many situations in which a child’s best interests are served by a court refusing a move. However, a full consideration of that possibility requires more than exploration of the potential effect of the proposed move upon the relationship between the child and non-moving parent. S.S.L. v. J.W.W. was a case in which this court said there were four possibilities that should be considered. While this is a different case, this case required at least consideration of the potential effect of refusing the move upon the relationship between the child and the moving parent, assuming the move will occur. In other words, it is consideration of the possibilities in the round, and not from one perspective only, that is required. The subtle, and troublesome, consequence of approaching the question with preference for the status quo is that the fully rounded analysis does not occur. ... "

The Confounding of Gordon v. Goertz

Read these extracts especially carefully; the court criticizes the current state of the law on mobility issues and, with much respect, urges the Supreme Court of Canada to consider the matter again.

“[57] The untrained reader of the foregoing appellate decisions might be forgiven for concluding that the Court of Appeal came dangerously close to reweighing the evidence and substituting its own discretion for that of the court below … The reader might also be forgiven for questioning whether the complex and convoluted reasoning now required of a trial judge in cases of this kind is in fact consistent with the overarching principle that as stated in Gordon v. Goertz, the best interests of the child are not merely ‘paramount’ in mobility cases but are ‘the only consideration.’ In my respectful view, the reasoning in Gordon v. Goertz is in danger of being distorted into a set of ‘rules’ that undermine this principle. The Court’s statement that the views of the custodial parent are ‘entitled to great respect’ has evolved into a de facto presumption in favour of the wishes of the custodial parent – notwithstanding the fact that the majority of the Court in Gordon v. Goertz rejected the imposition of a presumption. (Professor R. Thompson has referred to this as the unspoken ‘primary caregiver presumption’...) As seen above, the de facto presumption has been reflected in suggestions that the ‘rights’ of custodial parents are inconsistent with restrictions on their mobility with the children, and that such restrictions should exist only in the ‘rarest of cases’.

“[58] … It is not clear how the 'great respect' principle should work where both parents are custodial parents. Further, the prohibition in this province and elsewhere against placing the custodial parent in a ‘double-bind’ by inquiring at trial whether he or she will move without the children, seems to have made consideration of the status quo impermissible as a possible outcome ‒ even though this court has also said that the best interests of the child must be considered ‘in the round’ (Hejzlar) or in the context of all four possible scenarios (S.S.L.). Finally, the stricture (from Gordon v. Goertz) against considering the relocating parent’s reasons for wishing to move except where they are relevant to his or her ‘ability to meet the needs of the child’ has proven unworkable, as trial judges are reluctant to approve the disruption of children from familiar surroundings and relationships for reasons that, while not improper, may be selfish or trivial. As Professor Thompson notes, the prohibition is either simply ignored altogether or is circumvented by invoking the bromide that ‘what is good for the custodial parent is good for the children.’

“[59] It may, with deference, be time for the Supreme Court of Canada to reconsider whether cases of this kind are to be determined with reference only to the children’s best interests or whether what I suggest is an unspoken factor in mobility cases ‒ the 'mobility rights' of custodial parents ‒ are also a proper consideration. … Canadian courts require guidance as to how such rights, if rights they be, are to be weighed against other factors relating to children’s best interests.”

Madam Justice Newbury's decision is a masterful piece of judicial writing and efficiently surveys the evolution of the case law on mobility leading to the current predicament, most recently and most eloquently discussed by Rollie Thompson in his 2011 paper Where is BC Law Going? The New Mobility.

For a discussion of Professor Thompson's paper, see my post "Prof. Thompson Digests BC Law on Mobility."

Appeal Heard on Unsual Stepparent Child Support Decision

In July 2011 the British Columbia Provincial Court released a very odd judgment on steppparents' liability to pay child support in a case called K.A.L. v. J.P.R. To be clear, it wasn't the court's decision that was odd but the circumstances in which the action was brought.

K.A.L. was followed up a few months later in September with an unreported Provincial Court judgment rendered in an almost identical situation involving parties surnamed Faint, McFayden and Godin. The Supreme Court has just released its decision in the appeal of the unreported case, a decision that might just resolve any appeal brought from K.A.L. as well.

Background

As I pointed out in my post on K.A.L., "Stepparent Caught by Hole in Family Relations Act," the current legislation on family law matters in this province contains one very significant omission:

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

The surprising conclusion this led to in both K.A.L. and the unreported case was that a stepparent in an intact relationship with a biological parent was successfully sued for child support by the other biological parent. Both judges found that once the hapless steppparent met the statutory definition of steppparent, he became liable to pay child support to the parent with the primary care of the child, even though still in a relationship with the child's other parent.

K.A.L. came as a bit of a shock to many family law lawyers, yet was well within the plain reading of the Family Relations Act:

1. Each parent of a child is responsible to support a child. (FRA, s. 88(1))
2. The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
3. "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
4. A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))

And that's all there is to it. It just took the enterprising parents in K.A.L. and the unreported case to notice it.

The Appeal Decision

In McFayden v. Faint, Ms. McFayden and her husband Mr. Godin appealed the Provincial Court order requiring Mr. Godin, the stepparent of Ms. McFayden's child, to pay child support to Mr. Faint, the child's other parent and the parent with primary care of the child. Cutting to the chase, the Supreme Court upheld the lower court order and gave Mr. Faint his costs to boot.

Here is how the Supreme Court analyzed the situation, and I can do no better than quote from the judgment:

"[16] Section 88 of the FRA describes the obligation of a parent to provide for the support of the child, stating:

(1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.

(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent.

"[17] Section 1 of the FRA defines 'parent' as including:

(b) a stepparent of a child if

(i) the stepparent contributed to the support and maintenance of the child for at least one year, and

(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;

"[18] Section 1(2) of the FRA defines 'stepparent' as follows:

(2) For the purpose of paragraph (b) of the definition of 'parent' in subsection (1), a person is the stepparent of a child if the person and a parent of the child

(a) are or were married, or

(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.

"[19] The Guidelines created by the federal government were adopted for use in B.C.’s FRA through the CSG. The latter defines how the Guidelines and the FRA are to work together.

"[20] Section 1 of the Guidelines sets out its objectives which includes:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. [Emphasis added]

"[21] Mr. Godin submits that s. 1(a) of the Guidelines should be interpreted as being applicable to a stepparent only if he or she is separated from the biological parent. Since he is still married and living with Ms. McFayden he asserts that he is not obligated to pay such child support.

"[22] Mr. Godin acknowledges that he falls within the definition of parent as found in s. (1) and 1(2) of the FRA which leads to the question of whether s. 1(a) of the Guidelines should be interpreted as obliging a stepparent to pay child support as sought by Mr. Faint only if the stepparent is separated from the biological parent.

"[23] In K.A.L., Judge Dickey succinctly addresses the interpretation and application of s. 1(a) of the Guidelines where the stepparent is not separated from the biological parent of the child, stating at para. 18 of his reasons:

[18] In analyzing the issue of whether the 'Objectives' of the Guidelines should guide the interpretation of the FRA, it must be remembered that this is an application under the FRA and not under the Divorce Act and Guidelines. The Divorce Act and Guidelines apply to persons who are, or were, married to each other. The FRA is much broader in scope in that it applies to persons married to one another, persons in a marriage-like relationship, and stepparents. The 'Objectives' of the Guidelines relate to the more restrictive Divorce Act. The Regulation broadens the scope of the Guidelines by adopting them, and then expanding their application by broadening the definitions; see s. 1(3)(h) of the Regulation, in which reference to 'spouse' in the Guidelines is to be read as a reference to 'parent' as defined in the FRA, except for s. 5, in which it is to be read as a reference to 'person'. I also find that the 'children first perspective' of the Guidelines should be used as an interpretation guide to broaden and not narrow the obligation to provide child support, unless the obligation is clearly limited. I find, therefore, that the restrictive nature of the 'Objectives' of the Guidelines does not limit the child support obligations as found in the FRA.

"[24] The approach taken by Judge Dickey in K.A.L. is consistent with that found in Adler v. Jonas, a case involving a stepparent’s obligation to pay child support to his wife’s child. Mr. Justice Hardinge wrote at para. 20:

... I think it appropriate to note here that the provisions of the Family Relations Act should be given a liberal interpretation wherever its provisions relate to children. In Prichard v. Prichard, Spencer J. of this court said at paragraph 6:

The Act as a whole should be given an interpretation consistent with its objective of regulating the affairs of families in the broad sense. Where it deals with children it should be construed liberally in their favour to provide for their 'reasonable support'.

"[25] I concur with the liberal interpretation adopted by Judge Dickey in K.A.L. and affirmed by Judge Donegan in Faint when he concluded that Mr. Godin had a legislated obligation to pay child support for [the child], and that it was not relevant that Mr. Godin and Ms. McFayden were still married and living together."

In other words, the analysis in K.A.L. was bang on and accurately interpreted the more liberal provisions of the Family Relations Act as appropriately capturing stepparents in ongoing relationships with the parent of a child.

No Further Reference on Polygamy Prohibition

The Attorney General today announced the provincial government's intention not to obtain an opinion on the constitutionality of s. 293 of the Criminal Code from the Court of Appeal.

Chief Justice Bauman of the Supreme Court of British Columbia released his decision on the government's original reference on 24 November 2011. Government's announcement means that it is content to be guided by the Chief's reasoning and conclusions, and suggests that the government will take action based those conclusions. Unsurprisingly, the Attorney General's press release quotes her as saying:

"The assistant deputy attorney general for the criminal justice branch has now expanded the mandate of special prosecutor Peter Wilson, QC, to include possible polygamy prosecutions. Mr. Wilson will conduct an independent charge assessment review of any information brought forward from the ongoing RCMP investigation and determine if, based on British Columbia’s established charge assessment guidelines, the evidence warrants proceeding with polygamy or other charges."

If I recall correctly, this would be the provincial government's third attempt to convince a special prosecutor to lay charges against the Bountiful leadership.

Click on the "Polygamy" label below for more information, including a discussion of Chief Justice Bauman's decision.

Supreme Court Releases Decision on Family Debt

The Supreme Court of British Columbia has released a decision concerning, among many other issues, responsibility for debts in a family law context. The court's decision in Salminen v. Garvie is helpful for its summary of the law on a problem which, despite its frequency, is not dealt with by the Family Relations Act and is left entirely to the common law.

Thankfully, for the sake of brevity, the facts in the case aren't necessary to address with the case's discussion of the law on family debts. Here is the court's summary, with cites omitted:

"[70] The FRA does not explicitly address division of debts (Popp v. Popp; Mallen v. Mallen).  The respondent wishes to have the debts considered in the division of property.  He bears the onus of demonstrating that the debts were incurred for a family purpose.

"[71] In Moore v. Moore, Huddart J. held the following guidelines should be used in determining whether a particular debt should be considered in the reapportionment of assets:

5. ...

(a) the extent to which each spouse has benefited from the incurring of the debt or from the dilatory payment of it, before or after separation;
(b) the intention of the spouses when the debt was incurred as to who would be responsible;
(c) whether the debt was incurred before or after separation;
(d) with regard to income tax liability, the date of receipt of the income by reason of which the liability has been incurred.

"[72] These guidelines have been refined by later decisions such as Mallen v. Mallen.  In Mallen, Lambert J. held the following at para. 6:

6. The proper focus for the examination of a debt should be a focus on the nature and purpose of the borrowing and on the expenditure of the borrowed funds. If the funds were used to acquire a family asset, to maintain a family asset, to discharge a family burden, or to maintain the family members, then it is likely that equality and fairness will require an equal sharing of the debt or liability and its adjustment in the division of the assets in such a way as to carry out the principles of equality and fairness. If the funds were used entirely for the personal purposes of the spouse who borrowed them it is likely that equality and fairness will require that spouse to bear the whole burden of the debt after the triggering event. …

"[73] Later, in Stein v. Stein, it was found that both parties had benefited from certain tax shelters under reassessment and at para. 10 the following was noted:

10. Indeed the term 'family debt' has evolved in the jurisprudence out of a recognition that spouses jointly contribute to not only the accumulation of assets, but also debt. Although the phrase has no statutory significance, it has been used with increasing regularity by trial courts, (particularly in British Columbia) to describe 'a liability of either or both of the spouses which has been incurred during the marriage or for a family purpose' (Mallen, at para. 26). The very existence of the term 'family debt' underlines the reality that in order to ensure fairness, both debts and assets must be considered after the breakdown of the marriage.

...

"[76] This is consistent with the scheme of the FRA as described by Lambert J.A. in Mallen:

5. In my opinion, the equality of treatment of the spouses as required by the scheme of the Act is intended to be a true equality in real terms, and not an artificial equality reached by ignoring some of the facts and emphasizing others. In order to bring about a true equality it is necessary that debts and other liabilities of the spouses at the time of the triggering event and earlier be examined in a way that will illustrate the true relationship between the debts, on the one hand, and the attainment of equality and fairness, on the other. The examination of the debts should not be confined to classifying them into one category or another and so consigning them to treatment in one way or another, without regard to the underlying scheme of the Act.

"[77] Hinkson J. in Bryan v. Chapman, in referencing the above passage in Mallen said, at para. 43, that 'whether any particular debt is a family debt or not depends upon whether there is a discernible nexus between the debt itself, and some family purpose or benefit'."

To summarize this somewhat...

1. Debt can be considered in the division of property between spouses.
2. The spouse who wants the debt to be considered bears the burden of proving that the debts were incurred for a family purpose.
3. Debt incurred for a "family purpose," broadly speaking, means debt incurred for the collective benefit of the family, for example in buying a family asset, servicing a family asset or supporting the family.
4. If a debt was incurred for a purely personal purpose, the debt will remain the responsibility of the spouse incurring the debt.

The Family Law Act deals expressly with family debt, defining shareable "family debt" as debt incurred by either spouse between the date of cohabitation and the date of separation, and says that both spouses are presumed to be equally responsible for family debt as at the date of separation.

Courts Issue Rare Statement on Judicial Independence

On 8 February 2012, the Premier announced a new review of the justice system in this province, describing the review as:

"...a reform initiative to address B.C.'s justice system and identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services."

The review is not setting sail rudderless; it is intended to address certain issues identified in a green paper (PDF) the government released the same day. This is how the executive summary of the green paper frames those issues:

"This Green Paper is intended to highlight several key issues within the justice system of British Columbia. These issues include the way independence is preserved, the way information and processes are managed, and the way change is implemented.

"While significant progress has been made within the justice system in recent years, problems of cost and delay are appearing to a degree which is increasingly unacceptable. Action is required due to the reliance of British Columbians, their families and our economy on a sound system of justice.

"While the system’s basics – its integrity, its personnel and its ability to innovate – remain strong, indicators of the system’s performance and current health give a mixed and confusing message, particularly in the area of criminal justice. 'Inputs' into the system such as the rate of crime and the number of new cases are down. But the length of time spent by people remanded in custody or on bail awaiting trial is increasing, as is the total number of people being managed by the Corrections system. Costs, too, are increasing in real terms.

"The system is complex and challenging to reform. While it is possible to point to areas where a discussion of reform is warranted, it is also true that there are significant issues of culture and tradition within the system that may impede real understanding and change. Standing above this is the issue of independence of decision-making within the system. It is vital for our democracy that the exercise of judgment in criminal and civil cases – by police, by counsel, by judges and others in the system – be free of interference or influence. At the same time, the close linkage between the different parts of the justice system in managing case files, and our need to explain what is happening within the system, means we must administer the justice system as a system. In doing so, we must remain on strong constitutional grounds."

In reaction to the green paper, which included statements to the effect that judicial independence "should not be used as a shield against scrutiny on issues related to public administration," the courts of British Columbia issued a rare joint statement (PDF):

"We always welcome the opportunity to engage in dialogue with Government and other justice system participants on the issues and challenges facing the justice system. A fully functioning justice system is an essential element of a free and democratic society governed by the rule of law. Any suggestions for improvements to that system merit serious consideration.

"Such a review, however, must recognize that the various participants in the justice system operate within a constitutional framework. That framework places certain responsibilities on the participants and is founded on an independent judiciary. Any recommendations for reform must respect the constitutional framework in which we operate."

Today, the courts followed with a lengthier statement (PDF) explaining the basic apparatus and functioning of the Canadian legal system and the critical importance of judicial independence in elegant but accessible language. The joint statement clearly is intended to address the review and some of the government's messaging about the review (for example, "It has been suggested that judges may use independence as a 'shield' against scrutiny. This is a mistaken view."), but stands on its own as a compelling explanation of the need for an independent judiciary:

"There is a critical distinction between the police and Crown prosecutors on the one hand, and the judiciary on the other. The police and prosecutors are in the employ and within the authority of the executive branch of government. Although required to exercise their duties impartially and independently, at the end of the day they are agents of the Crown.

"Judges by contrast are not subject to the direction or control of the executive branch of government.

"There are sound reasons for this. Government, in its many manifestations, is frequently a party to court proceedings in an adversarial role. For example, the state is behind every criminal prosecution. Government agencies are frequently either parties to court proceedings, or are subject to having their decisions reviewed in the courts. Courts are called upon to decide disputes between our Aboriginal peoples, and various levels of government, or government agencies. Courts also have to rule on the validity of legislation, as to whether it is within the powers given to the Legislature or Parliament by the Constitution, and whether it conforms to the requirements of the Charter of Rights and Freedoms."

The court's unusual public comment on the review was not intended to signal a fundamental hostility to the idea of the enquiry and exploration, merely to remind everyone, and government, about the essential structure of the Canadian legal system and the importance of maintaining the independence of the judiciary from the executive branch of government. The statement concludes thusly: 

"The judiciary is always open to discussing ways to improve the administration of justice. Indeed, all levels of court have engaged in extensive discussions with government officials over the past several years with a view to achieving that end. In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality."

Read the Globe & Mail article on today's statement.

Unmarried Spouses Can't Escape Family Law Act

There's a basic principle of statutory interpretation that says that new legislation can only be interpreted as operating from the moment it comes into effect onward, and that new legislation can't go back in time unless the new legislation expressly says so. In other words, if a law comes into force on April 1st which says that men must wear orange jackets on Thursdays, the requirement is in effect from the first Thursday after April 1st, and doesn't apply to any of the Thursdays that came before April 1st.

This principle is really important for the new Family Law Act because the new legislation changes so much so significantly. In this post, I'm going to talk about whether people who are in unmarried relationships now are going to be caught by the definition of "spouse" under the new legislation.

Who is a spouse?

One of biggest changes under the Family Law Act has to do with who's a "spouse" and who's not. The definition changes under the new act. For the purposes of spousal support, "spouse" includes:

1. married spouses,
2. people who have lived in a marriage-like relationship for at least two years, and
3. people who have lived in a marriage-like relationship for less than two years but have a child together.

 For the purposes of dividing property and debt, "spouse" has a narrower definition and includes only:

1. married spouses, and
2. people who have lived in a marriage-like relationship for at least two years.

This last part is really important. Right now, unmarried spouses don't have any automatic property rights under the Family Relations Act. When the new law comes into force, unmarried spouses will have property rights equal to the rights of married spouses.

Time limits to the claims spouses can bring

The other thing that's important are the time limits about when a claim can be made, because under s. 3(2) of the new act, "spouse" also includes former spouses. Under s. 198, claims for spousal support and the division of property and debt must be brought within two years of divorce or nullity, for married spouses, or within two years of separation, for unmarried spouses.

Spouses and the claims spouses can make

To summarize everything, under the Family Law Act a "spouse" who is entitled to make a claim for spousal support and the division of property and debt includes separated unmarried spouses, but the application must be made within two years of when they separated. Under the Family Relations Act however, unmarried spouses stopped being spouses within one year of when they separated, after which a claim for spousal support could not be made, and unmarried couples were never able to make a claim for the division of property.

The problem

So here's what it all boils down to.

• Right now unmarried couples who have lived together for at least two years are not "spouses" for the division of property under the Family Relations Act.
• Unmarried couples who have lived together for at least two years will qualify as "spouses" under the Family Law Act. Spouses who have separated will also qualify as "spouses."
• Under the Family Law Act, separated spouses can apply for spousal support and the division of property and debt as long as they apply within two years of the date they separated.

Last year, the Attorney General issued a statement that the new act would come fully into force twelve to eighteen months after it became law on 24 November 2011. That's less than two years.

Mea culpa

From time to time, lawyers call me for a second opinion. I think I've been giving the wrong advice for the past two or three months. I had been telling people that the definition of "spouse" under the Family Law Act could only operate prospectively, that is, into the future. Therefore, when the new law comes into effect, the new definition would start then. Unmarried couples who aren't "spouses" for the division of property now wouldn't be "spouses" for the division of property and debt unless they are still together when the new law comes into effect.

This made sense to me, especially because it seemed somewhat unfair to drop unmarried couples into the deep fryer without giving them fair warning. I thought about how the definition of spouse limits spousal status under the Family Relations Act to one year after separation, and it seemed that this gave people plenty of time, figuring that spousal status once lost couldn't be regained. I assumed that at least one of the reasons for the twelve- to eighteen-month delay was to give everyone lots of time to think about their relationships. I thought that the knowledge that a relationship will have significant economic consequences in the future might make some people reexamine things and consider whether the new effect of the Family Law Act was more than they had bargained for when they started their relationship.

Then a colleague named Ron Huinink called me, I looked into things more closely and discovered that this wasn't the case at all. Yikes.

Summary

When the Family Law Act comes into force, for the purposes of the parts of the law that divide property and debt "spouse" will at that moment be defined as including:

1. anyone who is or has ever been in a married relationship, and
2. anyone who is living with another person in a marriage-like relationship and has done so for at least two years, and anyone who has ever lived with someone in a marriage-like relationship for at least two years.

The limit to these spouses' ability to make claims for the division of property and debt is that the claim must be made within two years of the date of separation, for unmarried spouses, or the date of divorce, for married spouses.

There is no twelve- to eighteen-month period to think about things. The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships.

To summarize, as long as the act comes into force on or before 24 November 2013, if you were in a spousal relationship when the Family Law Act became law, you will be subject to the property and debt provisions of the new law. Breaking up now will not save you from the effects of the new law. It's too late and was too late from the moment the bill was tabled. To take advantage of the new legislation, all a spouse needs to do is wait until the Family Law Act comes into force and then file an action in the Supreme Court.

All About Separation

A fair bit of time has passed since I first posted this article and things have changed, most importantly the replacement of the old Family Relations Act with the new Family Law Act. Please visit my post "All About Separation: The 2015 Edition" for an up-to-date and expanded version of this post. Please update your links!

A lot of the people who find my website and this blog have questions about separation. How do I separate? When am I separated legally? Can I see other people after I've separated? In this post I'm going to try and answer these and other questions. If I haven't answered your question, post a comment.

What is separation?

People in a relationship separate when one or both of them decides to end the relationship. People that are just dating break up. Normally, we think of married couples or couples who are living together as separating when their relationships end, probably because most of the time someone winds up moving out.

Separation is an important event under the Family Relations Act, because the date an unmarried couple separated sometimes starts the clock running on the one-year limit within which a claim for spousal support has to be made and sometimes on the one-year limit within which a claim for child support must be made against a stepparent.

Separation will be even more important under the new Family Law Act. Under that act, separation will be what gives each spouse a one-half share of family property.

How do I separate?

A couple is separated once or or both of them has made the decision to end the relationship, said so, and then done something to carry through the intention... like stopping sleeping together, stopping doing chores for the other person's benefit and so on.

Often the decision to separate is made by both people, but it only takes one person decide to end a relationship, and a decision to separate doesn't require the other person's agreement. Everyone is entitled to separate if they wish to end a marriage or common-law relationship.

Can we stay living in the same home?

Although many people move out when they separate, others separate and remain living under the same roof. Frankly, it's a lot cheaper to stay in the same home, as long as you can stand living in such close quarters with each other.

A physical separation is not necessary to separate, there must simply be an intention to end the spousal relationship and the intimacies that usually involves.

Do I need to see a lawyer to separate?

No, absolutely not! The job of the family law lawyer is to help you resolve any legal issues resulting from the end of your relationship. The decision to separate can have legal consequences, and you might consider meeting with a lawyer to talk about those consequences, but separation itself is nothing we can help with.

But what's a legal separation?

There's no such thing as a "legal separation." There used to be something called a "judicial separation," but that hasn't been available for a long time now. For more information about that, see my post "Little Known Family Law Facts #4".

Once you or your spouse or partner has left the family home or announced that the relationship is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Okay, what's a separation agreement then?

What people often mean by legal separation is a separation agreement. This is something else altogether. A separation agreement is a contract that people use to record their agreement about issues like how the children will be cared for, how their assets and debts will be divided and so forth. It has nothing to do with whether a couple have separated or not.

Separation agreements are not always necessary, and you can't be forced to sign a separation agreement. See the Family Agreements > Separation Agreements chapter of my website for more information.

What's the date of our separation if we can't agree?

Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for common-law couples, because time limits on claims for spousal support, and sometimes for child support from stepparents, begin to run from the date of separation. For married couples, there aren't any limitation periods that hinge on separation, but the date can still be important if there is a marriage agreement or some other contract that ties rights or duties to the length of the marriage.

The courts have talked about how to decide the date of separation. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties maintained a sexual relationship after they'd moved out and into separation homes. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."

A few other cases have also considered this issue. In Herman v. Herman, from the Nova Scotia Supreme Court in 1969, the court said this:

"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."

In Hills v. Hills, another case from the same court in the same year, the court said:

"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."

In McDorman v. McDorman, from New Brunswick Supreme Court in 1972, the court said:

"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, specially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."

Simplest of all, the Ontario Court of Appeal in 1970 in a cased called Lachman v. Lachman said:

"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."

What's desertion?

Desertion is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, that arose after one spouse had abandoned the other for at least three years "without just cause." This ground of divorce has long since been abolished. These days we just rely on separation for a period of at least one year to get a divorce order.

Can I still have sex with my spouse after we've separated?

Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated. While it might cause some emotional difficulties, like prolonging the amount of time it takes to recover from a relationship that's broken down, there's nothing legally wrong with having sex with your spouse or partner. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the court decides that the care and control of the children should be managed, child support or spousal support, or how your assets should be divided. The court does not look into this sort of conduct in determining these issues. 

The only thing you really need to think about is if you are married and are asking the court to make a divorce order based on your spouse's adultery or cruelty. If you have sex with your spouse afterwards you could be considered to have forgiven your spouse for his or her conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery or cruelty.

Can I start a relationship with someone else after we've separated?

Yup. Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider your relationship to have ended and whatever obligation you have to remain monogamous along with it. If you're married, you won't be divorced until you get a court order, but the marital aspects of your relationship and the attendant expectations of monogamy will be considered to be at an end.

Having sex with someone else will not have an impact on how the court decides that the care and control of the children should be managed, spousal support or child support, or how property should be divided. The court does not consider this sort of conduct in determining these issues.

Is having sex with someone else after we've separated adultery?

Only married spouses can commit adultery. If you're married it is technically adultery to have sex with anyone other than your spouse while you are married, even after you've separated. However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can sex with someone else after separation be a ground for divorce?

Only married spouses need to get divorced. You cannot sue for divorce based on your own adultery. However, if it's your spouse who's had sex with someone else following separation, you can use his or her adultery to get a divorce, as long as you haven't already asked for a divorce for another reason like separation.

Speaking of adultery, is it a criminal offence? Can I be charged with adultery?

Adultery on its own is not a criminal offence; it's not something you can be criminally charged for.

A fair bit of time has passed since I first posted this article and things have changed, most importantly the replacement of the old Family Relations Act with the new Family Law Act. Please visit my post "All About Separation: The 2015 Edition" for an up-to-date and expanded version of this post. Please do not add further comments to this post. Visit the new article and comment as you'd like! Please update your links.

Little Known Family Law Facts #6

Section 60(1) of the Law and Equity Act says that:

"For all purposes of the law of British Columbia, a married man has a legal personality that is independent, separate and distinct from that of his wife and a married woman has a legal personality that is independent, separate and distinct from that of her husband."

The purpose of this subsection is to cure a problem of the antique common law on domestic relations arising from the unity of the person doctrine. Under this doctrine, a married man and woman were treated as one person by the law, although one person under the man's control. Among other things, this meant that upon marriage the husband took all of his wife's property, but also became responsible for the law suits she had started and those started against her, and the wife became able to pledge her husband's credit.

The doctrine is expressed by the Latin maxim sunt quasi unica persona, quia caro una, sanguide unus which, although my Latin is pretty weak, means something to the effect of "they are as if one person, with one heart and one blood."

The Law and Equity Act is chock full of little gems like this, and except for the dreadful portions on mortgages and foreclosures, is well worth a read. For the law nerds in the crowd, the act also contains at s. 2 the enactment of the 19 November 1858 proclamation of Governor Sir James Douglas by which the laws of England were adopted as the laws of the Colonies of British Columbia and Vancouver Island.