Litigation Conduct may Constitute "Family Violence" under the Family Law Act

In the recently-released decision in M.W.B. v. A.R.B., the Supreme Court has characterized a party's approach to the litigation with her husband as "family violence" within the meaning of s. 1 of the Family Law Act, and taken the violence into account, as the court must when family violence is present, in assessing the best interests of the parties' child under s. 37 of the act. To properly understand the court's reasoning you must read the decision itself. I will try, however, to provide the highlights.

The issues before the court involved applications by each party brought about a year and a half after the trial decision. It is clear from the decision that the parties had been engaged in an extraordinary degree of conflict long before trial. (Although costs are unreliably awarded in family law cases, they will be awarded where the court wishes to signal its disapproval of a party's conduct. In this case, the trial resulted in the husband being awarded costs, special costs and a penalty under s. 92 of the old Family Relations Act for the wife's failure to make property disclosure of her finances!) This continued after trial, largely, it would seem, manifested in the wife's obstructionist attitude toward carrying out her obligations from the trial judgment. The court summarized the wife's conduct as follows:

[7] Pointing to the Respondent’s obstructive and grossly negligent conduct leading up to the January 2013 sale of the parties’ jointly owned commercial property, the Claimant seeks financial compensation or a further reapportionment under s. 66(2)(c) of the FRA. Her conduct has caused the parties to suffer a large loss of equity in the jointly owned family asset... 

[10] The high-conflict divorce trial took place about two and a half years ago ... in August 2011. The parties represented themselves. The orders made following the trial were aimed at stabilizing the parties’ finances, reducing conflict, regularizing parental access and, overall, to help the parties move forward. Those objectives were not realized as the Respondent’s conduct worsened the parties’ financial circumstances and conflict continued. 

[11] Following trial, the parties engaged the Court in four additional proceedings, all driven by the Respondent’s refusal to settle orders and costs in a reasonable way, her interference with the Claimant’s access and her obstruction of the sale of the commercial property. 

[12] The resulting litigation-related stress generated by the Respondent has caused the Claimant time, trouble and expense that in turn have contributed to a significant medical issue.

The rest of the rather lengthy decision expands on each of these concerns in much more detail. In any event, the primary issue before the court, was the husband's application to have the primary residence of one the parties' two children transferred to him, which would result in the child's relocation from the eastern side of the province to live with him on the western side of the province.

In analyzing this aspect of the application, the court first commented that the trial had been held when the Family Relations Act was in force, that by the time of the hearing, the old act had been repealed and replaced by the Family Law Act and that it was the new act which therefore applied to the application.

The court then observed that under s. 37 of the new act, the best interests of the children are the only factor to be taken into account and that "this principle applies to all existing child custody questions." The judge further observed that s. 37 requires a consideration of family violence, and that where family violence is present, the court must consider the additional factors set out at s. 38. This is where things get interesting.

First, the court reviewed the definition of family violence at s. 1 of the act. These are the parts of the definition which the court considered to be the most relevant to the case, as emphasized by the judge:

(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, ... 

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

Second, applying these factors to the facts of the case, the court reached the following conclusions:

[199] I find the [wife's] litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence. 

[200] The [wife's] conduct and needless litigation has forced the [husband] to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources. ...

[204] The best interests of children suffer when abusive oppositional behaviour and litigation fomented by one parent’s conduct harms the health and financial well-being of the other parent. This in turn harms the children’s economic safety and security. 

[205] Further, the [wife's] reckless and oppositional behaviour connected with the commercial property has damaged the children’s safety, and economic security. It effectively deprived them of receiving any benefit from sale of the property, endangered the [husband's] capacity to support the children and consumed money the [husband] could have used for a greater number of parent time visits. The [wife] knew her delaying and oppositional conduct harmed the [husband's] capacity to pay the cost of access visits. 

[206] If a parent’s abusive conduct harms the well-being of the other parent to the extent they may have to go on stress leave, this negatively impacts the child’s economic security. ... 

[208] The Respondent knew or ought to have known the impact her conduct was having on the Claimant’s financial situation; the Claimant made it clear to her. From this, I infer the Respondent is prepared to let her anger at the Claimant influence her to act in a way that indirectly harms the best interests of the children. I find the Claimant will not conduct himself in that way; the litigation history proves otherwise. 

[209] In summary, I find that the Respondent has directed violence at the Claimant that has indirectly harmed the children’s psychological and emotional well-being and economic security. ...

Finally, the court analyzed each of the s. 37 factors in detail to reach the ultimate decision that the child should move and live with the husband:

[260] As matters stand, having considered and now applying s. 37 of the [Family Law Act], ss. 8 - 11 of the [Divorce Act], the authorities, and all the evidence, I find that an order varying the custody order to designate the [husband] a principal residence caregiver is strongly in [the child's] best interests. I order accordingly...

In my view, there are two important points to be drawn from this remarkable decision.

Most importantly, in assessing the best interests of the child, each of the best interests factors set out in s. 37(2) must be considered individually. This step-by-step approach is critical because the factors are prefaced by this statement: "to determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following." Since each of the factors "must" be considered, the take-away message for lawyers and litigants is that you must provide the court with evidence on each of the s. 37(2) factors when making an application concerning children. For ease of reference they are:

(a) the child's health and emotional well-being; 

(b) the child's views, unless it would be inappropriate to consider them; 

(c) the nature and strength of the relationships between the child and significant persons in the child's life; 

(d) the history of the child's care;  

(e) the child's need for stability, given the child's age and stage of development; 

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; 

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; 

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; 

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; 

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

The other point is that the Family Law Act appears to have introduced at least three mechanisms to address misconduct in the litigation process, in addition to the existing provisions for frivolous and vexatious litigants set out at s. 18 of the Supreme Court Act.

1. either court may make an order prohibiting someone from taking further steps in a case where the party has made an application that is trivial, is conducting the case in a manner that is a misuse of the court process or is otherwise "acting in a manner that frustrates or misuses the court process," under s. 221 of the act;
2. either court may strike all or part of a claim or application or adjourn a proceeding until an order is complied with, under s. 223; and,
3. following the reasoning in this case, either court may also determine that a party's conduct is "a form of emotional abuse and harassment that constitute a form of family violence" under s. 1, which may be taken into account in determined a child's best interests and, of course, in making a protection order under s. 183. See the interesting discussion of "court harassment" provided by the Legal Services Society.

My thanks, as always, to Agnes Huang, who has never gone by Wong, for bringing this interesting case to my attention.

"JP Boyd on Family Law" Published

Today, the wiki became a wikibook when the first copies of the first print edition of the 670-page volume JP Boyd on Family Law were delivered to the library at the Vancouver Law Courts. The print run demonstrates the incredible potential behind the wikibook platform for the cost-effective delivery of public legal education. It is, I expect, the first of many editions to be released in the future as the wikibook is updated, by an editorial team of senior and junior family law lawyers, to keep pace with the continuing evolution of the law.

Photo: Clara Richardson

Copies of JP Boyd on Family Law will be distributed by Courthouse Libraries BC to every public library in the province as part of their LawMatters community outreach program.

I am tremendously grateful to everyone at Courthouse Libraries, in particular Johanne Blenkin, executive director, Drew Jackson, director of client services, and Nate Russell, legal community liaison, for their conception of and continuing enthusiastic support for this project. Thank you all very, very much.

Webinar on Predatory Marriages Offered

Carswell, one of Canada's leading providers of legal materials and now a of providers of continuing legal education programs, has announced an upcoming webinar on predatory marriages in Canada taught by Albert Oosterhoff, an adjunct law professor at the University of Toronto, and Kimberly Whaley a lawyer practicing in Ontario. The program summary offers this intriguing description:

"Predatory marriages result when an unscrupulous opportunist, who, purely for financial gain, marries a person with limited or compromised capacity or cognition. Predatory marriages are a form of exploitation and abuse of older adults. These marriages occur when one party to the marriage is incapable of understanding, appreciating, and formulating a choice to marry. Given that marriage brings with it a wide range of property and financial entitlements, perpetrators of such marriages have much to gain and the vulnerable older adults have much to lose when preyed upon in this fashion.    

"This webinar will help attendees identify and recognize signs of potential 'predatory marriages' and will provide attendees with an overview of the current and past case law as well as legislation affecting such marriages and the requisite capacity to marry in Canada"

It sounds like a very interesting course, especially given the graying of family law and rise of elder law.

The program runs from noon to 1:00pm EST (note that this is eastern time!) on Tuesday 4 June 2013, and comes at the rather reasonable cost of $90. For more information:

1. go to the website of the West LegalEdcentre;
2. in the "Search for CLE Programs" box at the middle of the page, enter "predatory marriages" in the Keywords text box;
3. click "Search;" 
4. click the grey box labeled "Live Webcast" in the results page that will pop up; and,
5. click on the program title in the new page that will pop up.

(Carswell, if you'd like some tips about how to make it easier for people to find programs like this on your website, send me an email.)

Japanese Parliament Adopts Hague Abduction Convention

The BBC has reported that the upper and lower houses of the Japanese parliament have now voted to adopt the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The convention is very important in family law cases, and allows the parent of a child who has been wrongfully taken by the other parent to another country to begin a process that may result in an order being made for the return of the child in that country.

Japan was the only one of the Group of Eight industrialized nations not to have signed the Convention and had been subject to much international pressure as a result. Ratification is expected in early 2014.

Court Deals with Difficult Issue of Interim Orders for Access

In the recently released Provincial Court case of J.C.P v. J.B., the court addressed one of the most challenging problems arising from the transition from the Family Relations Act to the Family Law Act: what do you do when an interim order gives someone access without addressing custody or guardianship? The problem comes from s. 251 of the Family Law Act, which says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The purpose of this section is to help people apply orders and agreements made under the old act using the language and concepts required by the new act. In a nutshell, if you have custody or guardianship or both as a result of an agreement or order made under the old act, you are a guardian under the new act and have parental responsibilities and parenting time. If you have neither custody nor guardianship, you are not a guardian and have contact with a child. 

This section is very important because if you only have contact, you're not the guardian of a child and you don't have the right to participate in making decisions about how your child is raised, such as about where the child goes to school, how the child is cared for when sick, which activities the child participates in, where the child lives and with whom the child associates, and, most importantly, whether the child moves out of town or not. Ouch.

However, it often happened that when a court proceeding started, the court would only make orders about access under the Family Relations Act, and not deal with the sticky, sometimes explosive, issues of custody or guardianship. A simple interim order for access alone might be made:

• where the children had been withheld and the other parent's most immediate goal was simply to start seeing the kids again;
• where the conflict between the parties would be ignited by an argument on the flashpoint issues of custody and guardianship; or,
• where there's not enough evidence in front of the judge to allow him or her to make an informed decision of the issue.

That made lots of sense under the Family Relations Act. However, under the Family Law Act, a plain reading of s. 251(1)(b) would say that the only order made was for access, and therefore the parent with access was not a guardian and therefore not entitled to parental responsibilities or parenting time. This would have been a horrible result, as it would, in many cases, deprive someone who would normally be a guardian of an incredibly important role in a child's life, all because of the very expedient approach that was normally taken under the old law.

This problem is precisely what Judge Merrick was required to address in J.C.P. v. J.B. The father had obtained an order for interim access alone under the Family Relations Act, and when the matter came back before the court under the Family Law Act, the lawyer for the mother took the position that the father wasn't a guardian as a result of s. 251(1)(b). The father, quite reasonably, said that as he'd lived with the mother after the child's birth, he was a guardian because of the presumptions set out in s. 39 of the act — that's the part that says that the parents of a child are the guardians of a child while they are living together and after they separate.

However, Judge Merrick began his analysis not with s. 251 of the Family Law Act but with ss. 35 and 36 of the Interpretation Act — these are the parts that talk about how rights and entitlements under old laws are to be interpreted and applied under new laws. As a result, what became important was whether the father had any rights other than access under the old law. Here is how Judge Merrick solved the riddle, with the important bits in bold:

[9] The question, in my view, is before the repeal of the Family Relations Act, did [the father] Mr. P. have a substantive right; that is, did he have any guardianship rights with respect to the person of [the child] S.? If he did, was the right vested and, if it was, does the Family Law Act manifest an intention, either expressly or by implication, to take that right away? 

[10] There is no issue that for at least the last year, [the mother] Ms. B. has had the usual care and control of S. and, therefore, she was the sole guardian of the person of S., unless the court ordered otherwise. See s. 27 of the Family Relations Act. 

[11] I have concluded that my order of September 25, 2012, paragraph 4, that provides, "Both parties shall advise the other party promptly of any medical, alternative medical, or dental appointments or treatments of the child" vested limited guardianship rights to Mr. P. 

[12] Counsel for Ms. B. submitted that since the orders made so far only granted Mr. P. access and not custody or guardianship, pursuant to the provisions of s. 251, Mr. P. is not a guardian and he only has contact with S. 

[13] Read literally, s. 251 would seem to suggest that. 

[14] However, the court in this case so far has not ruled on the issues of custody and guardianship, except to the extent that limited guardianship rights were granted to Mr. P. in the September 25, 2012, order. To be clear, there has not been an interim hearing to decide issues of custody and guardianship. 

[15] Applying a purposive approach to the legislation, I am of the view that the purpose of s. 251 of the Family Law Act, as stated earlier, is really to translate terms from the old legislation to the new legislation. I have concluded it is not to be used to determine issues previously not adjudicated upon that are in issue. 

[16] Accordingly, given my determination that Mr. P. had been granted limited guardianship rights in the order of September 25, 2012, and my determination of the meaning of s. 251 of the Family Law Act, I have concluded that for the purposes of the Family Law Act, Mr. P. is a guardian of S.

I am very glad to and have this important decision on the books, in particular, the court's reading of s. 251 as translating old orders rather than determining claims that had never been before the court and therefore never been considered by a judge.

My thanks to my colleague, the most excellent Edna Ritchie, for bringing this case to my attention.

The Crawford Model of Shared Parental Responsibilities

In a recently-released decision, Mr. Justice Crawford of the Supreme Court appears to have crafted the first model guardianship order under the new Family Law Act. In the case of G.P. v. M.J.R.P., a rather toxic case featuring a mother described as "an outgoing, volatile, aggressive and sometimes bellicose character," the court was asked to change a Family Relations Act order which gave custody to the father and joint guardianship, on the Joyce model, to both parties.

Mr. Justice Crawford observed that both parties were now the guardians of the child as a result of the transitional provisions of the Family Law Act at s. 251, and that the new act focuses on "the parents' 'parenting'." The mother's parenting capacity having improved, but the conflict between the parties persisting, His Lordship directed an approach to parental responsibilities allocating some to the father alone and adopting a modified version of the Joyce model with respect to the others, and required the parties to use this form of order (terms specific to the parties removed):

UPON THE COURT being advised that the name and birth date of each child is as follows:

Name, born on date, and
Name, born on date 

(the "Child(ren)") 

AND UPON being satisfied that name of party and name of party are the guardians (the "Guardians") of the Child(ren) under s. 39(1)/s. 39(3) of the Family Law Act; 

THIS COURT ORDERS THAT: 

1. Party shall have primary responsibility for parental responsibility and shall terms of primary responsibility, such as a requirement to consult the other party or to advise the other party. 

2. Both Guardians may request and receive from third parties health, education or other information respecting the Children. 

3. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Child(ren) provided however that such Guardian must advise the other Guardian(s) of any matters of a significant nature affecting the Child(ren) occurring during his/her parenting time. 

4. Each Guardian will consult the other Guardian(s) about any important decisions that must be made in respect of the Child(ren) and will try to reach agreement concerning these important decisions. 

5. In the event the Guardians cannot reach agreement with respect to any major decision despite their best efforts, party will have final decision-making power, provided however that the other Guardian(s) may seek mediation or, under s. 49 of the Family Law Act, seek a review of any such decision if he/she believes that such decision is contrary to the best interests of the Child(ren).

To break this down somewhat, the highlights of this model are:

1. a declaration that each party is a guardian of the children;
2. an order allowing each party to obtain information about the children from third parties;
3. an order confirming the parties' right to make day-to-day decisions about the children during their parenting time, as is provided by s. 42(2) of the act;
4. an order imposing a reciprocal obligation to attempt to reach an agreement on decisions; and,
5. an order giving one party decision-making authority in the event of an impasse, while allowing the other party to right to either compel a course of mediation or apply to court for directions on the decision.

The declaration about the parties' status as guardians is particularly important as, in my view, such declarations are the only practical way to let doctors, teachers and border guards know that a particular individual is the guardian of a child when he or she is not appointed by court order.

I have provided templates for the Joyce and Horn models of guardianship adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act in the blog of Courthouse Libraries BC.

My thanks to my friend and colleague Agnes Huang for letting me know about this interesting decision.