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.

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.

National Action Committee Releases Final Report

Yesterday, the national Action Committee on Access to Justice in Civil and Family Matters released its final report, "Access to Civil and Family Justice: A Roadmap for Change."

The Action Committee was convened at the request of Canada's Chief Justice, Beverley McLachlin, in 2008 to consider how the problem of declining access to justice might be addressed. Justice Thomas Cromwell, also of the Supreme Court of Canada, described the purpose of the Action Committee in these terms:

"The Action Committee…sees itself as a broadly representative group of leaders in the field of civil and family justice which can develop consensus about priorities, encourage organizations and groups to take the lead with respect to them and provide ongoing consultation, coordination and advice."

Four working groups were struck, the Court Processes Simplification Working Group, the Report of the Access to Legal Services Working Group, the Prevention, Triage and Referral Working Group and the Family Justice Working Group, each composed of leading judges, lawyers, academics and government representatives from across Canada. These groups released their final reports in 2012 and 2013; they are available on the website of the Canadian Forum on Civil Justice. All worth are reading, especially, in my view, the report of the Family Justice group, "Meaningful Change for Family Justice: Beyond Wise Words."

The Action Committee's final report synthesizes the lessons and recommendations of the four working groups, but, as is the way with all committees and working groups, leaves these things for implementation by government and justice system stakeholders. These are the somewhat sobering words of the Chief Justice in her foreword to the final report:

"Under the leadership of the Honourable Thomas A. Cromwell and each working group’s chair, the working groups have produced reports that outline the concrete challenges and provide a rational, coherent and imaginative vision for meeting those challenges. They focus not only on good ideas, but on concrete actions to change the status quo. The Action Committee’s final report bridges the work of the four working groups and identifies a national roadmap for improving the ability of every Canadian to access the justice system.  

"Our task is far from complete. The next step is implementation – to put the Action Committee’s vision into action. But it is not amiss to celebrate what we have achieved thus far: a plan for practical and achievable actions that will improve access to family and civil justice across Canada. ..."

Or, as the Action Committee itself observed:

"The report does not set out to provide detailed guidance on how to improve all aspects of the civil and family justice system across Canada’s ten provinces and three territories. That needs to come largely from the ground up, through strong mechanisms and institutions developed locally. Local service providers, justice system stakeholders and individual champions must be the change makers. ... 

"Access to justice is at a critical stage in Canada. What is needed is major, sustained and collaborative system-wide change – in the form of cultural and institutional innovation, research and funding-based reform."

I won't try to summarize the report, although at 24 pages of primary content it is a model of brevity in a legal landscape inclined to the prolix. You really should read the report yourself. Here, however, are the Action Committee's "nine-point access to justice roadmap designed to bridge the implementation gap between ideas and action" under the three main areas it sees as needing reform:

A. Innovation Goals 

1. Refocus the justice system to reflect and address everyday legal problems 

2. Make essential legal services available to everyone 

3. Make courts and tribunals fully accessible multi-service centres for public dispute resolution 

4. Make coordinated and appropriate multidisciplinary family services easily accessible 

B. Institutional and Structural Goals 

5. Create local and national access to justice implementation mechanisms 

6. Promote a sustainable, accessible and integrated justice agenda through legal education 

7. Enhance the innovation capacity of the civil and family justice system  

C. Research and Funding Goals 

8. Support access to justice research to promote evidence-based policy making 

9. Promote coherent, integrated and sustained funding strategies

Much thanks are due to Professor Trevor Farrow, Chair of the Canadian Forum on Civil Justice, who I understand is the uncredited author of the final report.