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.]

25 July 2012

Claims for Retroactive Child Support and Spousal Support

Speaking of the recently concluded National Family Law Program (see the post below), I was fortunate enough to be asked to present a paper at the conference reviewing the case law on retroactive child support and spousal support. Since my paper is too dull to hold any reasonable person's attention for more than twenty seconds, I'll just give you the Coles Notes version.

The two really important cases on this subject are D.B.S. v. S.R.G., a 2006 decision of the Supreme Court of Canada on retroactive child support, and Kerr v. Baranow, a 2011 decision of the court which addresses retroactive spousal support. A "retroactive" order is an order that has a start date before the date the order is made, like an order made in July for child support payments beginning in March.

The key points of the court's analysis in D.B.S. are these:
  • An obligation to pay child support exists independent of any order or agreement on child support.
  • The amount of child support is determined by the Child Support Guidelines. The Guidelines base the amount of support owing on the income of the payor
  • The payor's child support obligation is the amount payable based on the payor's income and the Guidelines, but changes as the payor's income fluctuates.
  • An order or agreement may correctly state the amount of child support payable when the order or agreement is made, but if the payor's income changes the order or agreement stop being correct.
  • When an order or agreement is no longer correct, a court can make an order requiring the payor to make up the difference between the amount of child support that was paid and the amount that should have been paid.
D.B.S. then says that four factors should be taken into account when a court is asked to make a retroactive order:
  1. the reasons for the recipient's delay in asking for an order updating the amount of child support;
  2. any misconduct on the part of the payor, such as hiding income, lying about income or pressuring the recipient not to ask for more support;
  3. any hardship suffered by the children as a result of the payor's short support payments; and,
  4. any hardship that the payor might suffer if forced to pay a retroactive child support order.
Courts should consider these factors and the facts of each case in a "holistic" manner.

When a court is prepared to make a retroactive child support order, the start date of the order should be the date the recipient let the payor know that child support needed to be updated, to a maximum of three years from the date of the recipient's application to court. However, if the payor has engaged in misconduct of some sort, then the start date can be as long ago as the date when the payor's income changed.

In Kerr, the court held that these same considerations also apply to claims for retroactive spousal support, with two modifications. First, the reasons for the recipient's delay are more important in claims for spousal support than in claims for child support. Second, the sort of misconduct that is relevant is misconduct relating to the support application itself.

After reviewing how Canada's courts of appeal have treated D.B.S. and Kerr, it seemed to me that orders and agreements for child support no longer offer blanket security against claims made in respect of the period covered by the order or agreement. Payors of spousal support are somewhat better off, subject to the propriety of their behaviour and the adequacy of their disclosure, but the period elapsing between separation and the first payment of support seems to be fair game. It also occurred to me that the issue of misconduct has become the dominant factor in deciding claims for retroactive support orders, despite the court's caution that it is only one of the four factors to take into account and that none of the factors are predominant.

At the end of the day, I concluded that the only reasonable court of action for people paying support, child support in particular, is to make voluntary disclosure of any changes in income and to update the amount of child support being paid whether the recipient asks for the change or not.

19 July 2012

Managed Financial Disclosure Service Launched

I've spent the last few days at the Federation of Law Societies of Canada's fantastic national Family Law Program where I learned of a nifty new service designed to facilitate document disclosure where child support is paid.

In Ontario, I understand, recent legislative amendments have made the annual disclosure of certain financial documents — tax returns, notice of assessment, pay stubs and so forth — mandatory where there is an order for child support. (The point of this is to give everyone the information they need to keep the amount of child support up to date, as well as the parties' shares of the children's special expenses.) This same obligation exists in British Columbia and all other provinces as a result of s. 21 of the Child Support Guidelines, which gives the recipient of support, and sometimes the payor, the right to demand the production of certain documents not more than once per year, but the obligation only arises when the demand is made unless an order or agreement makes annual disclosure mandatory. (The agreements I draft normally include an automatic disclosure provision to protect both parties against arrears building up.)

Given the new regulatory climate in Ontario, the new service, Support Information eXchange, run by Ontario lawyer Michael Marra and found at www.yoursix.ca, makes a certain amount of sense. As understand it, the service acts as an online repository where the parties can post and print their financial documents over the life of the child support order. The service will send an alert by email when new documents are posted and keeps a record of when the documents were posted. The cost is $50 per year.

14 July 2012

Bored of the Rings

The BBC has just run an amusing article titled "What divorced readers did with their wedding rings," following up on their previous article "When does the wedding ring come off?" Suggestions include: throwing into random field; throwing into sea; and, dropping through sewer grate.

12 July 2012

A Note About the Present Effect of the New Family Law Act

I've been getting a lot of questions over the past few weeks about the status and current effect of the Family Law Act, a fair number of which have come from colleagues. Here's the deal.

The Family Law Act passed third reading on 23 November 2011 and received royal assent the next day. However, the lion's share of the new act is not presently in force. The act will come fully into force on 18 March 2013.

The parts of the act that are not in force — which is all of the important parts, really, including the parts about the care of children and the division of assets — have no legal effect in British Columbia until they come into force. Although people negotiating a private settlement can use the language and conceptual framework of the new act if they'd like, the parts that are not in effect cannot be used or relied upon by the court. For the court, it's as if those parts of the new act simply don't exist, and it would be an error of law for a judge to apply a provision of the act which is not in force in determining a current family law case.

10 July 2012

Guest Column: "Mediation Tips"

by Brenda Shapiro, Esq.

When you are getting ready for your first mediation conversation, chances are that your mediator will share with you some tips and/or rules of the road to guide the conversation. The number of tips and the emphasis placed on each may vary from mediator to mediator but here are some of the critical considerations and commitments that we ask of our mediation clients.
  • Enter into the mediation process in good faith and with the belief that a satisfactory resolution for the dispute is possible.
  • Understand that the best possible solution for the dispute lies within you and the other party.
In mediation, emphasis will be on identifying the respective interests of the affected parties. This can lead to a process of creative problem-solving that generally far exceeds the scope of traditional legal remedies. Remember that the law is based on one of two principles, serving the greater good or a very narrow and specific set of facts from a given situation. It is likely that what is just and fair for the community at large, may not satisfy your interests. And, unless your fact pattern is closely aligned with that of precedent case law, your resolution might come from uncharted territory.
  • Be willing to engage in the mediation process in a spirit of compromise and negotiation.
If you are entering mediation with a checklist of unyielding wants and needs then mediation will not work. Each person in a mediation discussion needs to listen and hear what the other person is saying and, likewise, has to be able to clearly communicate what it is that they hope the resolution will address.

One of the beauties of mediation is that it can represent your last, best chance to reach resolution that you control. Being inflexible can result in the resolution being imposed upon you by a dis-interested third party such as a judge.
  • Provide full and accurate information during the mediation process so that both parties are able to make informed decisions.
If you are participating in mediation because you think its relative informality and the lack of a judge will make it easier to hide information, you are wrong. In the Pledge to Mediate as well as any settlement agreement arising out of the process, you will be asked to sign your name indicating that have not withheld information, misrepresented information, etc. There are legal consequences if you are later found to have been anything but up front, complete and honest.
  • Focus on the freedom of the "after" instead of being a victim of the "past".
If all you want out of mediation is to re-hash history, you won't very much enjoy the experience. Instead, the best outcomes are possible when the parties consider what life would be like after a resolution and how it can springboard them to a new place in mindset and life.

About Brenda B. Shapiro, Esq.

Attorney Brenda B. Shapiro provides legal counsel to clients on family law matters, including prenuptial and postnuptial agreements, divorce, child custody, access and time-sharing, post-dissolution, domestic violence, and grandparents’ rights. She established the Law Offices of Brenda B. Shapiro, LLC in 1994, where she is managing partner. She is also a founding director of the Collaborative Family Law Institute. For more information, visit www.bbshapirolaw.com.

07 July 2012

Still More Family News from KTLA

I popped by the website of Los Angeles-based KTLA Television again today and their fine, fine reportage continues apace. Here are just some of the stories you'll find under the Popular Stories banner today:
  • Toddler Badly Beaten For Mispronouncing Sister's Name
  • New Mom Goes Berserk After Smoking Bath Salts in Maternity Ward
  • 9-Year-Old Goes On Wild Tubing Ride With Dolphins
  • 19 Kids Found Alone in Filthy, Hot Kentucky Home
There really is something strangely compelling about KTLA's choice of content.