27 December 2013

A Brief Guide to Making a Better Argument

The ability to muster up a decent argument is an important life skill; it's why we live in a democratic civil society governed by the rule of law rather than an anarchic Thunderdome where might makes right. It's not just first-year university students who benefit from the ability to make a good argument. It's what you need when you want to pitch an idea to your boss, ask for a raise, write an editorial, sell a product, argue an application in court, or comment on a blog post.

The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct.

Here, for example, is a simple but valid argument:
All cats are mammals. All mammals die. Therefore all cats die.
If the reasons for the argument are true (that cats are mammals and that mammals die), then the conclusion must be true. This is very basic example of a valid argument; you might make other, more complicated valid arguments about:
  • why you should buy this car as opposed to that car,
  • why you cast your vote a particular way during an election, or why you might decide not to vote at all,
  • why you and your spouse should separate,
  • why a certain parenting schedule should prevail after separation, or
  • why someone's argument in a blog post is incorrect.
However, not all arguments are good arguments. Some are contradictory or nonsensical, and others contain errors of reasoning. For example, here's an argument that sounds like a good argument:
Some people are mechanics. Some mechanics fix cars. Therefore some people fix cars.
But it's not a good argument. Here's a counter-example that shows the error in reasoning:
Some machines are capable of flight. Some things capable of flight are birds. Therefore some machines are birds.
Formal logic errors can be difficult to detect, but they're fun to find when you do. Of course, in legal matters, finding a logic error can depend on not just the structure of an argument, but on having a deeper understanding of the legal principles that apply, and equally deep understanding of the facts. For example, an argument like
I am entitled to see the children and I am required to pay child support. She doesn't let me see the children. Therefore I don't have to pay child support.
won't fly, even though it may sound reasonable at first glance. The reason why it won't fly is that there is no legal connection between a parent's obligation to pay child support and a parent's entitlement to spend time with the children support is being paid for. They are entirely separate issues.

As well as formal logic errors and errors of law, there are the informal logic errors called fallacies. These are errors in how we think about things and analyze a problem, and frequently appear in letters to the editor, arguments in court and comments to blog posts. The following are a few of my favourite fallacies.

The circular argument

In this sort of argument, also called the circulus in demonstrando, the correctness of the conclusion is assumed and becomes the reason why the conclusion is correct. For example:
A equal parenting schedule is fair because it is an equal parenting schedule.
Arguments like this aren't very helpful because the reason for the conclusion is the conclusion itself.

Argument from ignorance

This argument, the argumentum ad ignorantiam, says that something is true because it hasn't been proven not to be true, or that something is false because it hasn't been proven to be true. For example:
This bill simply makes it the applicant's job to prove that it is NOT in the best interests of the child to have that sort of arrangement. So you will have to explain better why this isn't beneficial. Children have a right to an equal relationship with their parents.
This argument says that because the original speaker has not explained why a proposed legal presumption is inappropriate to the satisfaction of the speaker that it must be appropriate. The argument isn't very helpful because it doesn't add any information to the discussion in support of the speaker's views apart from his disagreement with the position of the original speaker.

The argument against the person

Also known as an ad hominem argument, this argument argues for its conclusion by avoiding the actual subject at issue and attacking the other person. Here are a number of examples:
Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass.

What it this? I read this in its entirety and its a blatent
[sic] attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment [sic] were to be made into law. Compensation cowboys, the scum of the earth.

Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it?
Perhaps being a Family Law lawyer you are just used to presenting baseless assertions.
The problem with arguments like these is that they say nothing about the subject at issue. They merely attack the person who is disagreed with. They also come across as rather juvenile and undermine the speaker's credibility.

Argument by appeal to authority

This argument, also called the argumentum ab auctoritate, tries to support its conclusion because of the authority or standing of the person making the argument, or of another person who has made the argument. For example:
We strongly disagree with your opinions. Leading Women For Shared Parenting is an international child advocacy group with but one cause: a rebuttable presumption of shared parenting in family law. We have a strong group of practicing family lawyers, domestic violence advocates, shared parenting researchers, elected officials and others who all support shared parenting.
This is yet another kind of argument which explains nothing about the reasons supporting the conclusion, and the context in which the argument is made, including in reply to the argument of someone else, is irrelevant. It says "this conclusion is correct because it is I who hold it." Unless you are prepared to uncritically subscribe to the speaker's authority, this argument is pointless.

Here's another example, in which the speaker merely quotes someone in a position of authority and high social regard:
"If there is a divorce in the family, I urge a presumption of joint custody of the children. Whereas it is impossible to change thousands of years of sex-role stereotyping through legislation, we can hope, in an existential fashion, that attitudes can be changed through education and the passage of laws." 
- Karen DeCrow, American feminist attorney, President of the National Organization for Women
The fact that Ms DeCrow has said this doesn't mean that she is right, and, as a result, it doesn't mean that the speaker is right either. Here's a counter-example to prove my point.
"Mars is somewhat the same distance from the Sun, which is very important. We have seen pictures where there are canals, we believe, and water. If there is water, that means there is oxygen. If there's oxygen, that means we can breathe." 
- Dan Quayle, American business person, former Vice-President of the United States of America.
See what I mean?

However, it is not an appeal to authority to refer the listener to a source of information, such as website, book, journal or academic paper. For example:
The work of Professor John Wade is a good starting point on the subject.
The difference here is that speaker is providing a resource for further reading on the part of the listener rather than relying on the resource as authority for the speaker's proposition.

Argument by taking out of context

This sort of argument, also called the fallacy by quoting out of context, is particularly popular in American politics and attacks a position by taking the speaker's original words out of context and dumping them into a new context. for example:
And of course all the child murders in Australia is a good reason to oppose it too, right JP?
This selective reference distorts the speaker's meaning by presenting them without explaining the circumstances surrounding the original speech.

The red herring argument

This argument presents a side- or non-issue to distract from the issue being discussed. For example, a statement like
The argument that I don't buy into is that if one parent was previously a bread winner they are presumed to be a less capable parent.
which purports to reply to an argument or reason that has not been stated by the original speaker. This sort of argument says nothing about the main subject under discussion. Here's another:
One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings. First their children are forcefully taken away from them, then they are forced to pay crippling amounts of money to "support" children they rarely get to see. Sounds suspiciously like financial slavery to me.
In the context of a discussion about the merits of a presumption in favour of shared parenting, the payment of child support and histrionic claims of "financial slavery" are irrelevant and don't add anything to the central issue of shared parenting. They merely distract from the subject of the discussion.

Argument by Shifting the Burden of Proof

In this argument, the speaker argues that it is the listener's job to disprove the speaker's conclusion rather than providing reasons to prove the speaker's conclusion. For example:
There's no justifiable reason for not giving equal access from day one of most separations.
This sort of non-argument provides no support for the speaker's conclusion.

The argument through false dichotomy

Also called the black-or-white fallacy, this argument sets up two positions as polar opposites, implying that the subject of the argument is either all one thing or all the other. For example:
You know what the presumption is in high conflict separations currently. It is specifically 2 weekends a month for the "visitor" parent, with 1 movie night in between.
In the context of a discussion about shared parenting, this misleading statement suggests that either there is shared parenting or one parent has the children for two weekends a month, as if there were no other potential arrangements for the children's time. Here's another example:
To clarify, when a mother wins custody, a father must lose it. He must give up has children to the mother or go to jail.
In fact, joint custody — where both parents have custody — is a very common post-separation arrangement in Canada and people don't go to jail about it. The point of arguments like these is that they try to strengthen the speaker's point by establishing the greatest possible contrast between the two positions and eliminating the possibility of a middle ground. And another example:
One wonders why the system must be adversarial, arbitrarily picking winners and losers. One also wonders why the winners are almost always women and the losers are almost always men. One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings.
The appeal to hypocrisy argument

This argument, also called the tu quoque fallacy, attempts to counter an argument by asserting that the original speaker has personally behaved in a manner inconsistent with his or her argument. It attacks the speaker rather than the argument. For example:
"A equal parenting schedule is fair because it is an equal parenting schedule." Those were YOUR words JP! No one in your comment section wrote that. Again, nice straw man you knocked down there.
This argument attacks the speaker rather than the substance of the argument, and in this example is especially egregious as the premise itself is false. Here's another example:
Did you get my challenge to ACTUALLY post evidence in support of your claim that "the Australian experiment was disastrous"? You must be busy over the holiday season. Or perhaps being a Family Law lawyer you are just used to presenting baseless assertions.
The problem with the appeal to hypocrisy is that, like the ad hominem argument, it attacks the speaker while avoiding addressing the issue on its merits.

I will close by repeating my remarks from the beginning of this post. The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct. 

Properly reasoned arguments, advanced without formal logical errors or fallacies, are, in general, compelling and encourage respect for the speaker and the point he or she is making. Good arguments can also move the listener toward accepting the speaker's conclusion, and this accomplishment can be tremendously important, whether the listener is a judge, a client or a potential client, a police officer or border guard, an employer, a landlord, a politician or the author of a blog. What I have presented here is only a small fraction of the formal and informal logic errors that can sink an argument. If you are interested in working on your ability to argue, you should consider joining a debating club, such as the UBC Debate Society, picking up a book on logic, or taking a course in logic from your local university's Department of Philosophy. 

20 December 2013

Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season

A few days ago, I wrote about a new private member's bill presently before the House of Commons which, if passed, would amend the federal Divorce Act to
  • require judges to presume that an equal distribution of a child's time between separated parents is in the best interests of the child; and,
  • prevent judges from making orders for unequal distributions of time unless they conclude that the child's best interests would be "substantially enhanced" by such an order.
In that post, I expressed the view that such presumptions would not be in the best interests of children, which triggered a impassioned but sarcastic comment from an anonymous reader expressing a contrary opinion. A recent conversation with a colleague, a researcher from Victoria, has helped crystallize my reasoning, and and in this post I will elaborate on my earlier views.

As an initial step, I think it is important to appreciate the vacuity of the arguments in favour of shared parenting used by most men's groups. In essence, the argument usually goes like this. Equal parenting is in the best interests of children because it is fair, and it is fair because it is equal. The problems with this logic, apart from its circularity, are that it is really the interests of the parents which are served by mathematical fairness in the division of a child's time, and that it presupposes that an equal division of the child's time is prima facie in the child's best interests. Most of my male clients who have held this view have been unable to articulate any concrete reasons why their children's best interests would be best served by an equal division of time other than that the division of time would be equal.

Next, men's groups usually point to the fact — and it is a fact — that most separated mothers have their children for most of the time, and claim that this is evidence of an institutionalized judicial bias against men. There are a number of problems with this argument. Firstly, a statistical distribution of parenting time is not evidence of anything other than the distribution of parenting time. You have to go a fair bit further to prove motive in order to conclude that bias actually exists, and so far this is where the men's rights groups have fallen short. (65.6% of the Justices and Masters of the British Columbia Supreme Court are men, by the way.) Secondly, there are social and economic factors that provide a far more compelling explanation of this statistical distribution other than the existence of a secret judicial pact against men. 

Five or six years ago, a television station interviewed me on the question of judicial bias against men, just in time, if you can believe it, for Fathers' Day. What I told them was this. Given that:
  • women are still underpaid, over-represented in pink-collar jobs, and make something like $0.70 for every dollar men earn;
  • mothers lactate (men still have difficulty in this regard); and,
  • we continue to enculturate our children to the expectations that men are the breadwinners, working outside the home to support the family, while women are the rearers of children and keepers of home,
it's hardly surprising that when a financially stable couple have a child, they make the rational economic decision to have the lesser-earning parent, who happens to be able to feed the child from her own body, stay home to raise the child. Of course, when EI's paltry parental leave benefits expire, these couples often opt to continue this distribution of labour. If parents separate in common circumstances like these, the distribution of labour prevailing during the relationship frequently survives the separation; one parent continues to be the children's primary caregiver and the other continues to satisfy the family's financial needs. However, if the parents cannot agree on how the children's time will be shared, they'll go to court for a resolution if they can't find another way of handling the problem.

The first judicial decision on parenting time will be an interim decision, a rough and ready decision, made without the benefit of all of the evidence that would be available at trial, that is meant to last only until the next interim decision or until trial. Without very compelling evidence that another arrangement is in the best interests of the children, that a parent is unreasonably withholding or limiting the other parent's time with the child or that the parents have moved too far away from each other to make it work, the court quite frequently makes an interim order that continues the previous parenting schedule for the time being. Orders to this effect are usually fairly sensible. They preserve the status quo that the parents have established between themselves, without judicial intervention, and preserve the children from a significant change in their parenting arrangements.

To summarize this somewhat, the decisions couples make as to how they divide their labour as parents often has a direct effect on how their labour and their children's time is divided after separation. If a couple make the decision that one of them will stay home to raise the children, that parent is usually the mother for a number of very good economic and social reasons, and that parent usually continues to be the primary caregiver after separation. This does not mean that men are poor parents or that there is a judicial conspiracy against men. It is, by and large, a reflection of the rational decisions the parents made themselves.

In my view, as a lawyer who practiced family law exclusively for thirteen years, there is an unwritten presumption in favour of joint custody and, under the old Family Relations Act, joint guardianship. Orders for sole custody and sole guardianship were generally only made where a parent was absent, where the conflict between the parties was very high, where there was a history of family violence or where a parent was addicted, had serious mental health issues, or suffered from some other obvious parenting deficit. This makes a lot of sense, as orders for joint custody and joint guardianship reduced the conflict between parents by avoiding the winner/loser implications of an order for sole custody to one parent and access to the other, and gave the parents and the court the ability to make finely-tuned adjustments to the children's parenting arrangements though the details of the order for joint guardianship.

Orders for joint custody and joint guardianship did not imply that the children's time would be equally split between their parents homes. When the court is asked to make a decision about parenting time at trial, the court must make its decision considering the specific circumstances of each specific family and how those circumstances relate to the children's best interests. Thankfully, there is usually an abundance of evidence on these issues at trial and the court makes its decision taking into account that evidence and the specific factors relating to the children's best interests set out at ss. 37(2) and 38 of the Family Law Act (formerly s. 24 of the Family Relations Act), and, if the parents are married, the children's best interests and the principle that the children should have as much contact with each parent as is in their best interests, set out at s. 16(8) and (10) of the Divorce Act. In general, the court looks at:
  • which parent was the primary caregiver during their relationship;
  • the parenting skills and experience of each parents;
  • the degree of bonding between the children and each parent;
  • the children's need for stability and security, often in relation to the ages of the children;
  • the degree of conflict between the parents and their ability to cooperate and communicate with each other;
  • the presence and nature of any family violence;
  • the existence of any serious parenting deficits such as addictions and so forth;
  • the wishes of the children;
  • the children's cultural, linguistic and spiritual heritage; and,
  • the parents' abilities to spend time with the children.
Consideration of the circumstances of separated families in light of these factors has resulted in an enormous range of parenting orders, with all manner of distributions of the children's time. Some parents see their children a lot, other see their children less often. And when it is in the children's best interests to do so, and the parents are sufficiently mature to be able to cooperate and work together, the children's time will be shared between the parents more or less equally. Whatever the distribution may look like, when the court must make an order on the subject, it does so according to the specific needs of the specific family before it.

Interestingly, I have noticed a trend toward shared parenting over the past five or six years. Parents are increasingly making agreements for shared parenting and the court is increasingly making orders to that effect. The range of the shared parenting arrangements I have been involved in is enormous, and includes a rotating two-week pattern of two days, two days and three days, a rotating two-week pattern of three days and four days, a stable one-week pattern of three days and four days, a rotating two-week pattern of two days and five days, a week-on week-off pattern, a two-week-on two-week-off pattern, and so on. 

I have had many clients for whose children shared parenting has worked very, very well. Likewise, I have had many clients for whom an effort toward shared parenting did not work, and many clients for whose children an unequal distribution of time was best. The factors that militate in favour of shared parenting include:
  • parents with similar work schedules or commitments;
  • parents who live relatively close to each and to the children's school;
  • parents who are able to work together, can reach compromise without ill will, and put their children's interests ahead of their own;
  • parents with a significant histories of involvement in parenting the children; and,
  • the children's expressed wish to live with both parents equally or near-equally.
However, having established that shared parenting works very well for some people does not mean that it therefore works well for everyone. The factors that tend to militate against shared parenting include:
  • a parent with shift work or an unpredictable pattern of work-related absences from the home (a stable parenting schedule cannot be made);
  • parents who live more than thirty or so minutes away from each other (the children will grow to resent lengthy trips between parents' homes);
  • a parent working full-time and the other parent not working outside the home or working part-time (why should the children be in daycare when the other parent is available to care for them);
  • the conflict between the parents is excessive (children should be shielded from conflict between their parents to the maximum extent possible);
  • problems in a child's relationship with a parent (the child will not wish to spend an equal amount of time with each parent); and,
  • a parent who has not previously contributed to or been involved with the raising of the children (the parent may lack the skills required to care for the children for extended periods of time).
Contrary to the view of my anonymous commentator, there are no presumptions that mothers should be primary caregivers (the number of men who stay at home and adopt the role of primary caregiver continues to climb, although they continue to be relatively few in number) and that fathers should only have their children every other weekend. It is true that most separated mothers have their children for most of the time, however, there are a number of important social and economic reasons why this is the case, none of which involve judicial basis.

Similarly, there should be no presumption in favour of shared parenting, and the four most significant reasons I see for this are that:
  • it is not in every child's best interests to have an equal amount of time with each parent, some children need more stability, some parents live too far away from each other;
  • it is not the case that both parents in a family are equally skilled at parenting, some parents are less competent, some parents have been less involved in raising the children; 
  • it may be contrary to the children's best interests, and potentially even harmful, to impose shared parenting arrangements on interim applications when so little evidence is available to the court; and,
  • the parenting arrangements that are best for the children of a specific family should be determined in light of the specific needs of those children and the specific circumstances of that family.
In a nutshell, it would do a gross disservice to our children to presume that the same parenting schedule is in the best interests of all of them. Their needs and interests must be considered and assessed individually, which is precisely what a system without presumptions affords. The provisions of s. 40(4) of the Family Law Act are entirely appropriate, and if the Divorce Act must be amended, the bill could do no better than adopt the language of the provincial statute:
In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:
(a) that parental responsibilities should be allocated equally among guardians; 
(b) that parenting time should be shared equally among guardians; 
(c) that decisions among guardians should be made separately or together.
Update: 27 December 2013

As you will see from looking at the comments to this post and to another recent post, "Equal Parenting Amendment Bill Tabled, would Amend Divorce Act," discussion of the issues I have raised has primarily dwelt on the fathers' rights perspective that children's time should be presumed to be split equally after separation. Although you will note that the arguments thus far have centred on unfairness to fathers rather than children's best interests, this bugaboo myth of the "weekend dad" keeps coming up as the purgatory fathers are assigned to in the absence of a shared parenting presumption.

From my perspective, the "weekend dad" is a straw man set up by fathers' rights groups to more dramatically contrast its shrivelled parody of fatherhood with the effulgent wholesomeness of "shared parenting dad." In reality, this all-or-nothing dichotomy between weekend dad and shared parenting dad does not exist. At least, it doesn't exist in Canada.

Yes, there is every-other-weekend dad, as cast by the fathers' rights groups. This is the sort of time a disengaged, disinterested father would get, and that's the real stereotype of weekend dad. However the variety of actual arrangements for the distribution of children's time between separated parents is almost limitless, and this variety exists precisely because most fathers are not disengaged and disinterested and it is in their children's interests to see them more than two weekends out of every four. More often than not, an every-other-weekend parenting schedule includes things like
  • three-day weekends, rather than two-day weekends,
  • evening parenting time during the work week, ranging from one or two evenings in the off-week to one or two evenings every week,
  • every other weekend, supplemented by an overnight in the middle of the workweek,
  • every other weekend, plus all or most statutory holidays and professional development days,
  • three weekends every four weeks instead of two,
  • half or most of the summer school holidays,
  • more than half or all of the spring and winter school holidays
and so on. As well, these parents will usually be going to their children's school and sports activities, regardless of when in the week the activities fall. They will be speaking to the children by telephone or Skype multiple times each week. They will write to the children by text, email and chat. They will be involved in the children's extended family and will attend family events with their children. They will be involved in making important decisions about the children's schooling, health care, sports and other extracurricular activities, linguistic and cultural heritage, counselling, therapies and treatments. These parents have not been disenfranchised from fatherhood; they are active, involved participants in their children's lives.

To be completely clear, the possible arrangements of children's time is not the false dichotomy of shared parenting dad versus weekend dad. Not at all. There are a ton of alternate arrangements and ways of distributing children's time between their parents that are rather commonplace and are not the estranged weekend day that fathers' rights groups rely on to such exaggerated effect.

Update: 28 December 2013

To carry on with my comments about active, engaged fathers, I was pleased to see that a report in the Calgary Herald on a recent study from the US National Center for Health Statistics which found that the "detached dad" is "mostly a myth," and that fathers "are quite involved in a variety of different and important ways." Key findings among fathers living with children younger than five were that, with respect to their children:
  • "Nine in ten fathers bathed, diapered, helped them use the toilet or get dressed at least several times weekly."
  • "Almost two out three read to them at least several times weekly."
Among fathers living with children aged five to eighteen, the study found that:
  • "More than nine of out ten ate meals with them at least several times weekly."
  • "Almost two out of three helped with homework several times weekly."
  • One in three "took their kids to or from activities" several times weekly.
The data used in the study was self-reported and in the absence of objective verification should be taken with a grain of salt.

Update: 24 May 2014

Commenting on this post is now closed. 

17 December 2013

CBA Releases Final Equal Justice Report

The Canadian Bar Association has today released the final report of its Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (PDF). This report follows the summary report released in August 2013, discussed in my post "CBA Releases Important Report on Improving Access to Justice". The final report is the culmination of the CBA's Equal Justice Initiative, launched in 2012.

Part I of Reaching Equal Justice surveys the nature of the problem and makes the argument about why it's necessary to change the justice system at all. Parts II and III discuss the means by which the justice system might be improved, and how those strategies might be implemented. An executive summary (PDF) is published as a separate document and summaries the three strategies as:
1. Facilitating everyday justice emphasizes looking upstream from the court system for ways to prevent and alleviate problems. For example:
a. Improving legal capability by teaching law as a life skill in public education, for people in transitional phases, in workplaces and through other avenues. 
b. Using legal health checks to build resilience and pre-empt legal problems. 
c. Integrating technological solutions to increase efficiency and accessibility of current processes.
2. Transforming formal justice aims to reform and re-centre courts as the central service responsible for adjudicating people’s problems. For example:
a. Cultivating dispute resolution and effective triage and referral — making it easier for people to navigate the system and get the help they need at the earliest opportunity. 
b. Re-centring courts to be open to user feedback and dedicated to innovation, learning, and integration of evidence-based best practices.
3. Reinventing the delivery of legal services aims for the elimination of assistance gaps and to ensure seamless and meaningful access to justice in every case.
a. Increased collaboration between legal service providers and public legal education and information providers. 
b. More support for people-centred law practices. 
c. More people-centred law practices working with integrated teams of service providers (legal, paralegal and social) to facilitate affordable and holistic delivery of services. 
d. More middle-income Canadians to be covered by legal expense insurance. 
e. Federal commitment to increase funding for legal aid services. 
f. That all lawyers provide pro bono services at some point in their careers, understanding that people do not rely on volunteer services to meet their essential legal needs. 
g. Greater emphasis on access to justice in law schools, including student legal clinics offering representation to low-income persons.
The mechanisms by which these strategies might be implemented are summarized as:
1. Building public engagement and participation requires a convincing answer to the question, “why should I care about equal justice?” The issue will not become a political priority if it is not a strong priority for the Canadian public. 
2. Building collaboration and leadership means establishing effective collaborative structures across national, provincial, territorial, and local levels, including the appointment of access to justice commissioners. 
3. Building capacity for justice innovation involves four main targets:
a. Improved collection and transparency of access to justice metrics. 
b. Development of a national research strategy to advance access to justice research and scholarship. 
c. Increased federal government engagement in ensuring an equal and inclusive justice system, including increased funding for legal aid. 
d. Deeper commitments by the CBA to taking a leadership role in access to justice reform.
Reaching Equal Justice is a call to action for both the public and everyone involved in the federal, provincial and territorial justice systems, and stands beside the final report (PDF) of the national Action Committee on Access to Justice as one of the most important public interest discussions of the justice system in recent memory.

On a personal note, I was very pleased to see the wikibook JP Boyd on Family Law, published and hosted by Courthouse Libraries BC, listed as an "emerging practice" in the delivery of public legal education and information. Thanks for the shout-out.

12 December 2013

Equal Parenting Amendment Bill Tabled, would Amend Divorce Act

Maurice Vellacott, Member of Parliament for Saskatoon-Wanuskewin, has succeeded in tabling a private member's bill in the House of Commons to amend the Divorce Act. The Divorce Act is of course the federal law that deals with the divorce of married spouses, custody and access, child support and spousal support.

Mr. Vellacott's proposal, Bill C-560, has certain merits in that:
  • orders about the care of children would be dealt with though "parenting orders" rather than orders for custody and access;
  • a discussion of counselling, parenting coordination and arbitration would be included in the advice lawyers must give their clients; and
  • a parent would be required to give 30 days' notice if moving the child's residence.

However, the bill would also amend s. 16, the part of the Divorce Act that talks about custody and access, to create a presumption that it is in the best interests of children that their time be shared equally between their parents. Here are some of the changes Mr. Vellacott proposes for this section:
(4) Subject to subsection (5), in making a parenting order, the court shall:
(a) apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage; and 
(b) apply the presumption that equal parental responsibility is in the best interests of a child of the marriage.
(5) The presumptions referred to in subsection (4) are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally. 
(6) If the presumptions referred to in subsection (4) are rebutted in accordance with subsection (5), the court shall, in making an order under this section, nevertheless give effect to the principle that a child of the marriage should have the maximum practicable contact with each spouse that is compatible with the best interests of the child. 
(15) The primary considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in aggregate, are
(a) the benefit to the child of having a meaningful relationship and as much contact as is practicable with each of his or her parents; 
(b) the continuity of relationships with relatives; 
(c) the willingness, and the effectiveness of the efforts, of each spouse to facilitate, encourage and support the child’s continuing parent-child relationship with the other spouse; and 
(d) the protection of the child from physical and psychological harm through abuse, neglect or alienation of parental affection.
(17) The court shall apply the following principles in allocating parenting time between the spouses to the extent that they are compatible with the best interests of the child:
(a) weekend, vacation, school holiday, family birthday and religious and cultural holiday time shall be allocated equitably between the spouses, with a view to the spouse with lesser aggregate time having as much of his or her parenting time as possible at times when he or she can be present with the child; 
(b) extra-curricular and educational programs and activities shall be scheduled so that they have an equitable impact on the parenting time allocated to each spouse; and 
(c) if relatives of the child reside in other cities, the travel requirements of a spouse shall be taken into consideration.
(18) If the court makes an order under this section that does not provide for equal parenting time or equal parenting responsibility, the court shall, in the reasons for its decision, explain in detail why such an order was made notwithstanding the principles for parenting orders set out in this section.
I do appreciate where Mr. Vellacott is coming from. There is a common misapprehension that men are discriminated against in family law cases, and all of the men's rights groups I am aware of propose some sort of presumption in favour of shared custody as a facile means of curing the problem.

However, from my perspective as a family law lawyer, such a presumption would not be in the best interests of children. It is certainly true that many separated parents have a shared custody arrangement, or something close to it, and that most of their children are doing very well. There are many other separated parents for whose children a shared custody arrangement would not be beneficial. The situations that leap to mind include:
  • where there has been a history of family violence, in the broad sense of the Family Law Act definition;
  • where the parents are engaged in high levels of conflict;
  • where a parent has taken a hands off approach to raising the children;
  • where a parent is dealing with an addiction or another serious mental health concern;
  • where the parents have irreconcilable opinions about matters essential to the raising of their children;
  • where a parent's work schedule requires long absences;
  • where there have been threats to abduct the children; or,
  • where a parent has shown no interest in the children after separation.
I'm sure I would come up with a much longer list if I gave further thought to the matter. In any event, my point is that families don't shop from the one-size-fits-all rack. The reality is that each family is different, and the current system, which contains no such presumptions, allows the court to custom-fit the parenting arrangements that are best for each family. One has only to look to the disastrous consequences of Australia's experiment with equal parenting presumptions to realize that such presumptions have no place in family law.

Mr. Vellacott's bill had its first reading on 6 December 2013. Hopefully this bill will suffer the same fate as Mr. Vellacott's efforts in 2010 and 2009, Bill C-422. Mr. Vellacott can be reached by email at maurice.vellacott@parl.gc.ca or by telephone at 613-922-1899 (Ottawa) or 306-975-8886 (Saskatoon). Click here to find your Member of Parliament by postal code.

Update: 24 December 2013

Dear Father's Rights People,

Thank you all very much for your comments. I appreciate, and indeed anticipated, your reaction to this post. However, for a more fulsome explanation of my views, please see my post from 20 December 2013, "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season," before posting a comment here.

And to those among you who complain that I have misrepresented Mr. Vellacott's bill, please note that I have provided a link the text of the bill and have quoted directly from the bill above. If you can explain how I have misrepresented the content of the bill, I will gladly post your comment.

I would also like to mention that the bill in question concerns the federal law of Canada, and that the legislation, rules and principles adhered to in Canada may not be similar to those of your jurisdiction.

Update: 24 May 2014

Commenting on this post is now closed. 

Update: 2 June 2014

Bill C-560 was defeated by a 80 to 174 vote at second reading on 28 May 2014.

12 November 2013

Failure to Pay Child Support may Constitute "Family Violence" under the Family Law Act

In the recent decision of J.C.P. v J.B. the Provincial Court has characterized as person's failure to "pay child support on time and in the full amount" as "family violence" within the meaning of s. 1 of the Family Law Act, and then applied this finding to determine the appropriate arrangements for the care of the parties' child. This decision continues a trend toward the broad interpretation of "family violence" I last remarked on in my discussion of M.W.B. v A.R.B. in my post "Litigation Conduct may Constitute 'Family Violence' under the Family Law Act."

In J.C.P., Judge Merrick was asked to determine a range of issues including child support, parenting arrangements for a four-year-old and whether family violence had occurred. Each of the parents made allegations of physical and sexual violence against each other, with the conflict in the evidence provided which is commonplace when such claims are raised, such that the court could not determine what had actually happened. The court was, however, able to conclude that the father had committed family violence as a result of a combination of his failure to pay the full amount of child support owing and his other behaviour. 

Before getting to the case, a quick review of the meaning of family violence will help to explain where the judge was coming from. This is the definition found at s. 1 of the new act:
"family violence" includes
(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, 
(b) sexual abuse of a family member, 
(c) attempts to physically or sexually abuse a family member, 
(d) psychological or emotional abuse of a family member, including 
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, 
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, 
(iii) stalking or following of the family member, and 
(iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;
As you can see, this definition is very broad and can include inflicting psychological harm and restricting funds. Now let's look at Judge Merrick's decision (important bits in bold):
"[15] With respect to [the father's] failure to pay child support on time and in the full amount, I am satisfied that this failure, combined with his other actions and words, constitutes family violence. I am satisfied that his failure to pay was a calculated and deliberate act designed to inflict psychological and emotional harm and to control [the mother's] behaviour. I am satisfied that [the father's] goal was to destabilize [the mother's] parenting of [the child]. 
"[16] I have come to this conclusion based on the following:
(a) [the father's] repeated failures to pay monthly child support, as ordered, for more than a year despite having an ability to do so; 
(b) [the father's] communication to [the mother] that other than child support, what could he do to assist her in parenting [the child]; 
(c) [the father's] actions in placing $20 in [the child's] backpack which went back and forth with [the child] as if it was some form of an allowance for [the mother]; 
(d) [the father's] view that child support was not due on the 1st of the month, as ordered by the court, and that he could choose to pay it within the month and whenever he chose to within the month
(e) [the father's] initial reluctance to contribute to the cost of [the child's] required dental care; and 
(f) [the father's] steadfast refusal to pay child support despite the considerable number of urgings and the explanation by the court as to the importance of child support.
"[17] While it is true that, recently, [the father] has been fulfilling his obligation to support [the child], I have concluded, based on the repeated urgings of the court and the repeated warnings to [the father] about the provisions of [the extraordinary enforcement remedies] of the Family Law Act, that his recent compliance is due to the fact that he reasonably believed he would be imprisoned if he did not pay child support in accordance with the court order. 
"[18] While I am of the view that the failure to pay child support will not often constitute an act of family violence, when the failure is the result of a determined decision not to pay, knowing the impact it would have on [the mother], who had limited income, and my rejection of [the father's] explanation for failing to pay, I have concluded that this was designed to inflict psychological and emotional trauma to [the mother] and is therefore an act of family violence
"[19] I am also of the view that this has impacted [the child's] well-being and that [the father's] ability to care for [the child] is impaired. 
"[20] [The father] used a secret surveillance camera to record a parenting time exchange and then used those images in court to show how well the exchange went. [The father's] submitted that he did this to rebut any suggestion that a third party was required at the exchanges. If this was, in fact, the case, however, why would he not have advised [the mother] of that? The use of the images in court created a real concern for [the mother] as to what else has been secretly recorded. I am of the view that the use of the images in court was designed to inflict emotional trauma on [the mother] This does raise concerns about the appropriateness of an arrangement that would require the parties to cooperate. 
"[21] Finally, I agree that [the father's] recent breakfast invitation to [the mother] in [the child's] presence, without prior notice to [the mother], was designed to be coercive and controlling behaviour. [The father] knew that if he had asked [the mother] in advance, [the mother] would likely have declined the invitation. This, too, demonstrates that [the father's] ability to care for [the child] is impaired. In [the child's] presence, [the mother] had no choice but to agree. 
"[22] [The father] suggested that this showed that he and [the mother] could act as a family. It was controlling behaviour which, in the context of all of the evidence in this case, demonstrates [the father's] poor decision-making in matters relating to [the child]."
After determining that the father's behaviour constituted family violence and that the violence impaired the father's ability to care for the child, the court then concluded that:
  1. the parties would share decision-making authority on matters related to the child's social upbringing, giving or refusing consent for medical treatments and the receipt of information related to the child's health and education;
  2. the mother would have sole decision-making authority for determining where the child would live, extracurricular activities, passports and licences, the child's legal interests and the child's financial interests, as well as "any other responsibilities reasonably necessary to nurture" the child's development; and,
  3. the father would have parenting time with the child on a schedule more or less as proposed by the mother, which included plans for overnights and holidays.
If there are lessons to be drawn from this case, and I suggest there are, they are these.

First, the courts take a very dim view of any sort of manipulative behaviour that can be characterized as falling into the very, very broad scope offered by the definition of family violence at s. 1 of the act. This certainly includes efforts to control someone's life by playing around with child support. I have seen this sort of petty, juvenile behaviour far too often, usually by male payors of support who feel pissed off and aggrieved that they have to pay money to their ex and fail to understand that the money is actually being paid for the benefit of their children. Here are the some of the rules.
Child support is almost always due at the beginning of the month. If it's due at another time, the order or agreement will say so. You don't have the right to delay your payments because you're mad at the other parent or for any other reason.
Speaking of orders and agreements, you don't have to have an order or an agreement to pay child support to have to pay child support. You are liable to pay for the support of your children the moment you separate and you stop paying for common expenses.
You do not have the right to withhold or shortchange a payment for revenge because you haven't seen the children, because you are short of cash or for any other reason.
Second, the sort of scheming behaviour some people engage in, intended to show the weak points of the other parent, is rarely effective. More often than not, the surreptitious taping or recording of events makes the person doing the taping or recording look far worse than the person being taped or recorded. The court does not appreciate this sort of thing, especially when it is clear that what is being taped or recorded is actually a set up or has been provoked.

Let me wrap this up with one more quote from the decision:
"[49] For the reasons I have given, I am of the view that [the father] needs to change his behaviour. The family violence must stop. There must be increased cooperation. Conflict must be minimized. This is an example of the type of conflict and criticism that must stop. At the conclusion of this case, [the father] submitted, 'I maintain and present that what the sum of the evidence shows is that there was an intention to run the clock as long as possible to make me have as many mistakes, to reduce and imperil, even with the most serious complaints, completely imperil my relationship and the ability to have a relationship, a fulfilling relationship, a complete parental involvement with [the child]'.
"[50] I do not agree that there is any evidence to support that what occurred here was the 'running of the clock'. I think this is again but one illustration of the conflict and criticism that must end. 
"[51] Therefore, pursuant to s. 199(1)(b) of the Family Law Act, [the father] shall attend, participate in, and successfully complete counselling, including psychological counselling and parenting courses, and provide proof of his attendance at counselling. Such proof must be filed no later than 3 p.m., May 31, 2014, at the court registry in North Vancouver."
My thanks to my colleague Laura Track for bringing this case to my attention.

08 November 2013

Supreme Court Releases Judgment Critical of Children's Affidavits

Mr. Justice Brown has just released his reasons for judgment in Rashtian v. Baraghoush, a case about the parenting arrangements of two children, that are both very interesting and mercifully brief. Earlier in the year, the court had made a final order requiring the children to live primarily with their mother. The subject of the judgment was the father's application to vary the order to allow the eldest child, a twelve-year-old boy, to live with him. It seems that the boy had begun to run away from his mother's house in order to be with his father.

Counsel for the father determined that it was necessary to put the views of the child before the court; this was a likely a prudent decision, for two reasons. Firstly, as the judge observed:
"[8] The parties give conflicting affidavit evidence about the incidents of [the child] running away or refusing to go with his mother at the designated transfer time. The mother says the father has actively encouraged [the child's] conduct, while the father says he has tried unsuccessfully to persuade [the child] to return to his mother’s home and on at least one occasion has driven him back. The police were involved in one of these incidents after [the child] had been reported missing."
Secondly, s. 37(2)(b) of the Family Law Act requires the court to consider the child's views unless it would be inappropriate do so. In order to present the child's views, the lawyer arranged for the child to meet with an independent lawyer to make an affidavit. 

This too was arguably prudent, as the evidence presented at applications like this is almost always given through affidavits and because having a psychologist update the needs of the child report presented at trial can be costly and take an inordinate amount of time to complete. The court, however, took a different view:
"[10] Counsel for the respondent filed an affidavit from [the child] that was prepared by and sworn in front of another lawyer. I made it clear at the hearing that I considered the creation of that affidavit to be highly inappropriate and I have not read it. ... 
"[12] Although it is often important to make the court aware of the child’s views, I consider the least satisfactory method of doing that to be an affidavit drawn by a lawyer to whom the child has been taken by one parent without the knowledge of the other. The creation of such an affidavit draws the child deeply into the hostilities between the parents and there is a high risk of influence and manipulation."
I share the court's concerns. As I put it in a 2012 article in the Canadian Bar Association's journal The Family Way, "Thoughts on the drawing of children's affidavits," the strategy of presenting a child's wishes through an affidavit can be "problematic" (citations omitted):
"A child swearing an affidavit in the course of litigation between his or her parents becomes involved in that litigation. The decision to elicit the child's affidavit must not be made lightly; as the [Manitoba Court of Appeal] commented in Jay v. Jay, 'it can never be in the best interests of children to be placed in a position where they become a part of the adversarial dispute between parents'."
Although there are times when there is no reasonable alternative to an affidavit, I concluded the article by cautioning that:
"...merely soliciting the affidavit, whether it's used in court or not, involves the child in the conflict between his or her parents and is fraught with peril as a result. There are other means of eliciting children's views and placing them before the court, including views of the child reports and judicial interviews, all of which are discussed in detail in L.E.G. v. A.G., and in my view the appropriateness of these alternatives should be considered carefully before the decision to obtain a child’s sworn statement is made."
Despite its comments about the child's affidavit, the court ultimately honoured its obligation to receive the views of the child, and it did so through a judicial interview:
"[13] While declining to read his affidavit, I did take the step of interviewing [the child] in my chambers, in the absence of the parties and counsel. I was impressed by his level of maturity. He appears to have a strong bond with his father that he does not have with his mother. He did not appear to have had been coached, although that is a difficult judgment to make with certainty."
Of course, not all judges feel comfortable interviewing children — some feel themselves unqualified, others worry about inadvertently doing harm to the child, and others are concerned about evidentiary issues and certain other legal niceties involving the principles of fundamental justice and the decision-making process — and you should not count on a judge being as willing to speak to the children as Mr. Justice Brown was in this case. The best alternative, I think, would be to arrange for the child to talk to someone else, an independent and trained third party, for a views of the child report; non-evaluative reports can be obtained quickly and at reasonable price from people including the members of the BC Hear the Child Society.

My thanks to Nate Russell and Agnes Huang for bringing this case to my attention.

07 November 2013

Amendment Granted to Allow Unmarried Spouse's Claim for Property Under FLA

In her recently-released decision in Smith v. Anderson, Master Bouck has allowed a claimant's application to amend a Notice of Family Claim filed prior to the new Family Law Act to include property claims under that act.

As readers will recall, the Family Law Act extends the same property rights to unmarried spouses as its does to married spouses. Moreover, the act is not explicitly worded so as to prevent unmarried spouses who started court proceedings before the new act came into effect from changing their claims to ask for property order under that act. (On the other hand, married spouses who split up and started court proceedings before the new act are stuck with the old act.) As you can imagine, there has been much discussion among the bar about what should be done when someone wants to change an older claim to seek property orders under the new act. 

I happen to believe, at least for now, that there is little that can be done to stop someone from making such a change (see my post "Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act"); others take a different view. However, I also agree with the view of Master McCallum in Reynolds v. Huard that at a minimum an unmarried spouse must be within the two-year time limit set out in s. 198 when the property claim is added.

In the Smith case, the claimant had already made one amendment under SCFR 8-1(1)(a) — you only get one free amendment before the Notice of Trial is filed — leaving the respondent in the delightful position of being able object to the second amendment and force the issue to a hearing before trial. 

Master Bouck held that the basic law on such amendments was as summarized in Dawe v. B.C. Children's Hospital, a 2004 decision of our Supreme Court, in which Madam Justice Ross said this (cites omitted):
"[17] The general principles to be applied in the consideration of an application to amend are as follows: 
(a) amendments should be permitted as are necessary to determine the real question in issue between the parties
The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to "so that, as far as possible, all matters in controversy between the parties may be completely and finally determined; 
(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded; 
(c) a party is not required to adduce evidence in support of a pleading before trial; 
(d) on an application to amend the facts alleged are taken as established; 
(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient."
Master Bouck then reviewed the few number of cases of unmarried spouses wishing to amend claims to seek orders under the Family Law Act, namely Reynolds and P.N.K. v. C.L., another case in which an amendment was sought out of time, and observed that:
"[30] In neither case, however, does the court rule that the FLA will not apply to the circumstances in which Ms. Anderson and Mr. Smith find themselves. That is, an action already commenced but with a separation date arguably within the two-year period stipulated in s. 198(2)(b)."
As a result, she found that:
"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."
In the meantime, for the purposes of allowing the parties to prepare for the trial at which the applicability of the FLA remedies would be determined, the court concluded that it would be "just and convenient" to grant the amend of the Notice of Family Claim (important bits in bold):
"[33] First, I accept the claimant’s submission that denying the amendments would simply result in another action being commenced. A multiplicity of proceedings is to be avoided. A second action will certainly not lead to a speedy resolution of the parties’ dispute: Rule 1-3 of the SCFR. 
"[34] Second, I find that no fault lies with the claimant for the suggested delay in bringing this application before the court. The application could not have been made before the FLA came into force. The delay in having the application heard can be attributed to a number of factors, including both counsel’s other commitments and the vagaries of Supreme Court chambers time. 
"[35] As well, I accept that the respondent was given reasonable notice that these amendments were going to be pursued. 
"[36] Third, while it is appreciated that the amendments may lead to further discovery (and probably additional expert reports), any resulting prejudice to the respondent can be remedied by the trial judge in a costs award
"[37] Weighing all of these factors, I find that it would be just and convenient to grant leave to amend the notice of family claim in accordance with the draft pleading appended as Schedule “A” to these reasons. It is to be noted that this document includes a plea not found in the originally proposed further amended notice of family claim, namely a claim against the respondent for occupational rent. Claimant’s counsel did not believe that such a plea was necessary at law. The respondent takes a different position. Thus, it is just and convenient to allow this amendment to ensure that all matters between the parties are properly adjudicated upon at trial
"[38] The original further amended notice of family claim will be returned to the claimant as the document should be appended to the order submitted to the registry."
My thanks to the inestimable Agnes Huang for bringing this case to my attention.

05 November 2013

When Your Lawyer Isn't a Lawyer

The Law Society of British Columbia is the organization which regulates people practicing as lawyers in the province. Under the Legal Profession Act, the Law Society is also responsible for licensing lawyers, which gives it the collateral authority to take action against those who perform legal services but aren't licensed to do so.

When the Law Society runs into someone engaging in the "unauthorized" practice law, it usually applies to court for an injunction prohibiting the person from practicing law for a fee or representing him- or herself as a lawyer. The Law Society issues regular press releases summarizing its activities in this regard, such as its press release from 1 November 2013 which identifies five people who have been restrained from practicing law.

To find out whether the person you are thinking of retaining — or have retained! — is a lawyer, you should check the Lawyer Lookup tool on the Law Society's website or call the Law Society at 604-669-2533 or 800-903-5300. Or, you could take the opposite approach and see whether the person is listed in the Law Society's database of unauthorized practitioners. If you're hiring a lawyer to represent you in a family law matter, it makes sense that you'd want to make sure that the lawyer has the right training and knowledge and is approved by the Law Society to do so.

If it turns out that the person representing you isn't licensed to practice in British Columbia, you should terminate his or her services right away and hire a real lawyer. You do not want to have your legal position damaged by the advice or actions of someone who doesn't have the right knowledge, skills or training. You should also contact the Law Society and let it know what has happened to you.

As a footnote, since you're hiring someone to represent you with one of the most important problems you will ever have to deal with, you can go further and check the Law Society's hearing reports and admissions database, which identifies lawyers who have been formally cited by the Law Society for violations of its rules or code of conduct. The current citations and hearings page shows the status of all current citations and related disciplinary proceedings.

27 October 2013

Supreme Court Publishes Rules for Divorces Under Civil Marriage Act

Regular readers will recall the August amendments to the federal Civil Marriage Act intended to allow non-resident same-sex couples marrying in Canada the ability to get divorced when they reside in countries which do not recognize same-sex marriages; see my post on the subject, "Civil Marriage Act Amended to Allow Non-Residents to Divorce."

Since the amendments were made, I am aware of two lawyers who have begun divorce proceedings under the Civil Marriage Act, as they were entitled to do, despite the absence of rules and forms. The Supreme Court has at last filled the gap and announced, effective 28 October 2013, a new Practice Direction on the issue, PD-43 (PDF). Here's the Practice Direction in a nutshell:
Claims for a divorce under the Civil Marriage Act are to be starting by one or both spouses filing a Requisition in Form 31. 
Where only one spouse is asking for the divorce and the other spouse consents to the divorce, the applicant spouse must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by both spouses, 
  3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
  4. the other spouse's affidavit consenting to the divorce.
Where only one spouse is asking for the divorce and the other spouse does not consent to the divorce, the applicant spouse must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by the applicant spouse, 
  3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
  4. an order from a court in the country where either spouse lives saying that the other spouse cannot consent to the divorce issues because of mental incapacity, that the other spouse is unreasonably withholding his or her consent to the order or that the other spouse cannot be found.
Where both spouses are asking for the divorce, they must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by both spouses, and 
  3. an affidavit from each spouse stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted.
If the court is satisfied that the divorce should be given, the divorce will be effective from the date of the order without an appeal period. The court registry will issue a Certificate of Divorce to a spouse who requests one. 
The Practice Direction sets out examples of the forms to be used — and remember that these are civil court forms, not the usually family law court forms usually used in divorce cases — as well as handy and important reminders such as these:
  • the Practice Direction does not apply to divorces under the federal Divorce Act; and,
  • no claims for other orders, like about support, the care of children or the divisions of property made be made in divorce proceedings under the Civil Marriage Act.

18 October 2013

The Essential Case Law on the Family Law Act to Date

The Family Law Act has been law in British Columbia for seven months now, and, as regular readers of my blog will know, the courts have released a number of critical decisions interpreting and applying the new legislation. Here is a list of the cases that I think are among the most important, and the main subjects addressed by each case.

The numbers and letters after the name of each case is the legal citation for that case. ("2013" is the year in which the decision was published, "BCPC" or "BCSC" means the British Columbia Provincial Court or the British Columbia Supreme Court, and the last number is the number of the decision among all of the decisions released by the court that year.) You can use the citation to find the case on CanLII if the hyperlinks stop working for some reason.
Child Support 
S.M.L. v R.X.R., 2013 BCPC 123: basic principles regarding child support under the old Family Relations Act continue to apply under the new act except that there are new grounds to vary a child support order 
M.A. v. F.A., 2013 BCSC 1077: when a minor child will be considered to have "voluntarily withdrawn" from the care of his or her guardians for the purposes of child support

Children: Best Interests 
Hadjioannou v Hadjioannou, 2013 BCSC 1682: the best interests of children are determined by a review of the facts and each of the factors listed in s. 37(2) of the new act 
G.B. v L.A.P., 2013 BCSC 1490: the best interests of children are determined by a review of the facts and each of the factors listed in s. 37(2) of the new act 
Children: Guardianship 
D.Q.L. v W.D.H., 2013 BCSC 1291: the rights and responsibilities of guardians under the act are enough for guardians to care for the child and an interim order under the Divorce Act may not be necessary 
Rashtian v Baragoush, 2013 BCSC 994: orders for custody under the Divorce Act may supplemented for orders for the distribution of parental responsibilities under the new act 
Van Kooten v More, 2013 BCSC 1076: the Joyce model of guardianship adapted for the new act 
G.P. v M.J.R.P., 2013 BCSC 746: the Joyce model of guardianship adapted for the new act 
C.K.B.M. v G.M., 2013 BCSC 836: the Joyce model of guardianship adapted for custody orders under the Divorce Act 
Hansen v Mantei-Hansen, 2013 BCCS 876: the Joyce model of guardianship adapted for custody orders under the Divorce Act 
Children: Guardianship Applications 
J.L.M. v. G.A.T., 2013 BCPC 96: Provincial Court may make orders declaring a person to be a guardian of a child 
T.C. v S.C., 2013 BCPC 217: parent may be made a guardian on an interim basis but must file required affidavit within 60 days 
Director and L.M.P., L.M.P. v K.P. and others, 2013 BCPC 206: the sort of criminal records check required of persons applying to be appointed as the guardian of a child 
S.T.H. v R.M.G., 2013 BCPC 114: new act does not allow applications for "sole guardianship," such applications are applications to remove a person as the guardian of a child 
D. v D., 2013 BCPC 135: a person should not be removed as the guardian of a child except in extreme circumstances 
Children: Relocation Applications 
Berry v Berry, 2013 BCSC 1095: the degree of impact necessary for a move to qualify as a "relocation" under s. 65 of the new act 
T.C. v S.C., 2013 BCPC 217: parent may be made a guardian on an interim basis to provide parent with standing to object to relocation 
T.C. v S.C., 2013 BCPC 217: one of two critical cases on relocation, the analysis of "good faith" under s. 69, and the analysis the court must undertake in deciding whether to allow or refuse an application to relocate 
L.J.R. v S.W.R., 2013 BCSC 1344: second of two critical cases on relocation and the analysis the court must undertake in deciding whether to allow or refuse an application to relocate 
M.K.A. v A.F.W., 2013 BCSC 1415: the amount of time a guardian must have with a child to be "substantially equal" time under s. 69 for the purposes of relocation applications 
S.B. v N.L., 2013 BCPC 233: what happens when someone opposing a relocation fails to object within the thirty days allowed; the degree of proof required to establish delivery of a notice of relocation 
Court Procedure 
J.L.M. v. G.A.T., 2013 BCPC 96: Provincial Court may make orders declaring a person to be a guardian of a child 
J.D.G. v J.J.V., 2013 BCSC 1274: the availability of fines under s. 213 of the new act when someone fails to produce a financial statement with the deadlines set out in the Rules of Court 
M.J.S. v A.D., 2013 BCPC 230: the availability of orders under s. 221 for fines and prohibiting a party from making further applications without leave; applications for intervenor status in family law proceedings 
Division of Property and Debt 
Reynolds v Huard, 2013 BCSC 1251: unmarried spouses cannot add property claims under the new act if they are not within the two year time limit set out in s. 198 of the new act 
Asselin v Roy, 2013 BCSC 1681: the first case on the division of family property and family debt under the new act 
Divorce Act 
D.Q.L. v W.D.H., 2013 BCSC 1291: the rights and responsibilities of guardians under the act are enough for guardians to care for the child and an interim order under the Divorce Act may not be necessary 
Hansen v Mantei-Hansen, 2013 BCCS 876: relationship between orders for the care of children under the new act and the Divorce Act; when orders must be made under the Divorce Act 
Rashtian v Baragoush, 2013 BCSC 994: orders for custody under the Divorce Act may supplemented for orders for the distribution of parental responsibilities under the new act 
Family Violence 
M.W.B. v A.R.B., 2013 BCSC 885: a party's conduct of a court proceeding may amount to family violence 
D.J.K. v J.J.K., 2013 BCPC 223: "family member" for the purposes of protection orders includes a parent's adult child 
N.P. v I.V., 2013 BCSC 1323: factors in making protection order 
L.M. v L.S., 2013 BCSC 796: factors in making protection order
I have written more extensively about many of these decisions elsewhere in this blog; click the "Family Law Act" label below to find them.