The Case for Family Justice Reform and Access to Justice: C.A.J. v N.J.

A few days ago, Mr. Justice Bernard of the Supreme Court of British Columbia released his 174-paragraph judgment in C.A.J. v N.J. This case is, in terms of the law, unremarkable. However, in terms of the call for the radical reform of family justice systems most recently enunciated by the final report of the national Action Committee on Access to Justice, A Roadmap for Change (PDF), and by the final report of the Canadian Bar Association's access to justice committee, Equal Justice: Balancing the Scales (PDF), it is a clarion call for change.

The tale of C.A.J. is a tragicomedy involving two adults who married in 2000 and separated in 2009. The wife brought two children into the marriage, and the parties had another of their own. Neither party brought much by way of property into the relationship, and at the end of the day the only significant asset worth dividing was the family home, which had equity of about $160,000 at trial. Both parties worked during the marriage, the wife returning to the work force following the birth of their daughter, and both were working at the time of trial.

The litigation, which appears to have been started by the wife in 2010, led to a trial at which the parties represented themselves. The trial spanned a scant twelve days — almost short by today's extraordinary and egregious standards — but took more than two years to complete. Justice Bernard observed that the two years taken to complete the trial was "principally due to inaccurate time estimates, voluminous evidence, rescheduling difficulties, and the parties' unfamiliarity with the trial process and the rules of evidence."

C.A.J. bears many of the hallmarks of high-conflict family law cases:

• each party alleged the other was an unfit primary caregiver
• the wife accused the husband of family violence, harassment, stalking and threatening, and had made seventeen complaints to the police to that effect in the years following separation
• the wife accused the husband of having a sexual interest in their eight year old daughter, which she also brought to the attention of the police
• the husband accused the wife of alienating the children from him and the two step-children from their father
• the husband accused the wife of being an anger addict with borderline personality disorder who was prepared to lie to get whatever she wanted
• the wife's claims were on the extreme end of the scale — she sought sole custody of the daughter, retroactive and prospective child support, retroactive and prospective spousal support, a dramatic reapportioning of the family assets (70/30) and a restraining order against the husband
• the husband's claims were less extreme — he also sought sole custody of the daughter and the removal of the wife as a guardian of the child  — but was prepared to a modest reapportionment (55/45) in favour of the wife
• both parties were self-represented throughout a long trial
• the trial which required the evidence of at least twelve witnesses, including neighbours, parents, friends and tenants, and the wife decided to call the two children she brought into the marriage to give evidence

It is easy to imagine how the inflammatory allegations made by each party, the wife in particular, would have entrenched each party in their positions, made compromise impossible and made trial inevitable.

C.A.J. also bears the hallmarks common to litigation conducted by parties without counsel, many of which were remarked upon by Madam Justice Gray in her 2013 study, Filling in the Blanks: Summary of a Study Regarding the Law of Evidence and Self-Represented Family and Civil Litigants in the BC Supreme Court. Justice Gray, in her survey of Supreme Court judges, reported that problems with evidence was the single most important factoring contributing to lengthened trials involving self-represented litigants. Other problems included:

• poor organization
• inclusion of irrelevant evidence
• omission of evidence on an important issue
• providing argument instead of evidence
• including too much detail in relevant evidence

I expect that these figured prominently in Justice Bernard's concerns about the length of trial.

I in no way mean to cast aspersions on C.A.J. or N.J. for their conduct of the trial, the fact of their conflict and the vituperative nature of their allegations against each other, or for their unfamiliarity with the rules of evidence and court processes. Their trial, however, is starkly illustrative of a number of problematic features of the traditional justice system. 

Our court system, which perhaps reached the acme of its efficiency in the 1800s, is predicated on conflict and an me-versus-you mentality in which there are winners and losers. This works quite well for people suing about trespass to property, injuries sustained in a motor vehicle accident or a worker's unpaid bills, where the plaintiffs fight to prove fault and the severity of the injuries sustained and the defendants work to prove their blamelessness and the inconsequential nature of the plaintiffs' injuries, if any were sustained at all. 

It doesn't work quite so well in family matters, particularly given that fault has been expunged from our system since the 1985 Divorce Act. 

In family law, the goal is to address the future of the separated family, not the consequences of something that happened in the past. In family law, trial does not provide an end-point, only a framework that lasts until circumstances change and the order needs to be varied. In family law, there is no certainty as to result; every issue except for the divorce will be resolved considering the specific circumstances of the particular family before the court. In family law, there is no insurer or deep-pocketed corporation which pays the costs of lawyers' fees and court costs, the parties cover these expenses from the family property remaining to them. In family law, the result of trial is not predicated on findings of fault and the assignment of blame, but the financial realities of the parties and the best interests of their children. Perhaps most importantly, in family law, the relationships between those involved are emotional, not business-like, based on kinship ties and continue indefinitely after trial.

Litigation is not how disputes between family members should be resolved. There are no winners and losers in family law; there is a family unit which continues long after the parties' separation, albeit restructured to address the economic and housing consequences of family breakdown. An adversarial process based on examination and cross-examination is not how we should be dealing with these issues. Indeed, the notion of one spouse cross-examining the other on the stand at trial has always struck me as the very height of perversity.

Making things worse, our court system is based on the parties driving the process. It's up to the plaintiff to bring his or complaints before the court, and up to the defendant to defend against them. There is no gatekeeper who evaluates the merits and likelihood of success of a claim, and the traditional job of the judge is to passively receive the evidence the parties decide to present in the manner they decide to present it, without criticism, interference or limitation.

Three things result from this. Firstly, anyone can sue anyone for anything, regardless of how meretricious the complaint is. Yes, there is a mechanism for turfing ill-considered lawsuits, but first the defendant must spend the money to file a defence to avoid default and then foot the bill for an application to have the suit thrown out, and the time and cost spent in that exercise may be unrecoverable. Second, a party can present almost any evidence he or she wants at trial, without regard to its quality, relevance or prurience. Many judges attempt to control this at trial, but judges have little control over the venom a party chooses to express in an affidavit. Lastly, the court doesn't enforce or monitor the success of the orders it makes. It is up to the parties to an order to apply to enforce the order when it is breached, and incur all of those costs of the process, with no certainty that the order will be enforced or that the costs will be repaid by the other party.

Finally, the court system is based on often inscrutable rules and frequently counterintuitive evidentiary principles. The rules of the Supreme Court, which were re-written and simplified in 2010, require 162 pages to reproduce in Carswell's British Columbia Annual Practice, and contain about 100 rules in total, compared to a more modest 70 or so in the unsimplified version. The rule about evidence and procedure at trial in the new rules, Rule 14-7, is hardly a model of efficiency with a whopping 77 individual subrules. With the greatest of respect to the drafters of the new rules, they are not simpler and do not enhance the accessibility of the courts or the trial process.

The rules of evidence used at trial are complex and are often not at all what people would expect. For example, hearsay, repeating in your own evidence what someone else told you or said in a letter, is rarely permitted, requiring the original speaker or writer to be summoned to give evidence. The best evidence rule, which requires the original document, photograph, recording or object to be used as evidence, is frankly nonsensical in the age of email and Facebook. The rule in Browne v Dunn, which has to do with putting your version of events to the other side rather than saving it for your own evidence, is reasonably counterintuitive for someone new to trials, often requiring witnesses who have testified to be called back to court to give new evidence. I could go on. It is a measure of the complexity of the rules of evidence that the 2009 edition of Sopinka's The Law of Evidence in Canada, the primary text on evidence, retails for $390 and runs to more than 1,400 pages.

In any event, it is perhaps not surprising that Justice Gray anticipated that the law of evidence might thwart the administration of justice if the rules:

• encouraged litigants to abandon a claim because of the burden of complying with the law of evidence
• increased the time in court and the time passing between the end of trial and judgment
• increased the time and expense parties are put to in responding to improper evidence
• resulted in the making of incorrect judgments because of the inadequacy of the evidence provided

Surely to god we can do better than this.

It is a wonder that, if one thinks of the term "family justice system" as including collaborative dispute resolution processes, mediation, mediation-arbitration hybrid processes and parenting coordination, we as a society choose to direct almost all of our funding of the justice system toward the most expensive, most complex and most inaccessible part of the system. It must stand to reason — meaning that it can't only be me who thinks this — that if we decided to fund collaborative processes, meditation and the other non-adversarial processes, we might slash the number of family law matters proceeding to trial and instead see the majority of family law disputes being resolved in a more durable, less damaging way. It is the height of absurdity that we steer so much money into a system that provides the grotesque process endured by C.A.R. and N.J. rather than into cheaper, faster alternatives.

My thanks to the marvellous Morag McLeod for bringing this unfortunate case to my attention, and my apology for the polemic.

Supreme Court Releases First Decision on Interim Property Distributions under the FLA

Mr. Justice Melnick of the British Columbia Supreme Court has recently released his decision in M.A.L. v N.A.L., giving us what I believe is the first judgment on orders for the interim distribution of property under the new Family Law Act. As usual, I need to provide a bit of background to explain what the new act has to say on the subject and why this is an important decision.

The Old Law

Under s. 66 of the old Family Relations Act, when a married couple were involved in a claim for the division of family assets, the court could:

determine any matter respecting the ownership, right of possession or division of property ... and may make orders that are necessary, reasonable or ancillary to give effect to the determination

That last bit, about orders that are necessary to give effect to the determination, was sometimes used to apply for an "interim distribution" of property — an order that some of the family assets be given to a spouse or used by a spouse in advance of trial or settlement. However, the law on the issue was very restrictive. A case called Ansari v Ansari from the Supreme Court in 2000 offered a very useful discussion of the issue, and concluded that interim distributions would only be allowed if it met this narrow test:

"[16] ... (1) Is the advance required to mount a challenge to the other spouse’s position at trial; 

(2) Will the advance or the payment on an interim distribution basis jeopardize the other spouse’s position at trial? ... "

As a result, you could apply for an interim distribution to fund an expert required for trial, but you couldn't apply for a distribution to pay your legal fees.

The New Law

All of this changed as a result of s. 89 of the Family Law Act, which says this:

If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund 

(a) family dispute resolution, 

(b) all or part of a proceeding under this Act, or 

(c) the obtaining of information or evidence in support of family dispute resolution or an application to a court.

This section rejects the case law that developed under s. 66 of the old act, and makes it plain that the court should, and perhaps ought, to allow interim distributions of family property — not excluded property, you'll note, just family property — to pay for the cost of out-of-court settlement processes, contribute to the cost of legal fees incurred in connection with claims for the division of property, and pay for the costs of experts. Very cool.

In the case before Justice Melnick, the respondent sought an interim distribution of the family property to help her cover her anticipated legal fees for a two-week trial:

"[4] ... The respondent needs money now to pay for legal expenses. The parties have reserved ten days in June for a trial to deal with their various issues. Those issues include the extent to which each party contributed to the acquisition of family assets, including the matrimonial home."

With an admirable economy, His Lordship reviewed the facts and, at paragraph 14, the text of s. 89, and made his order thusly (important bits in bold):

"[12] There are at present too many unknowns concerning the extent to which each party may have equity in the matrimonial home to order that the respondent be compensated now for one-half of its value or that it be sold prior to trial. As the claimant and the child, by court order, and the nanny are all living there it would not be expedient to order the sale now. But it may be that, ultimately, once each party’s interest in the family assets is determined, the claimant may have to relocate to less costly accommodation. ... 

"[13] At this point, given ... that as part of the interim arrangements the claimant has sole occupancy of the home, and the disparity in their income and access to assets, the parties proceed toward and into trial in very unequal circumstances. ... 

"[15] The respondent’s alternate application is for an interim distribution to her of family assets in the amount of $200,000 so that she may fund her litigation expenses. On the evidence before me on this application, I am satisfied that is a reasonable request, both in terms of amount and its necessity for her to deal with the difficult issues of asset division and parenting issues on an equal basis with the claimant. Given the equity in the matrimonial home, the length of the marriage, and the assets to which the claimant has access, it is, even at this early stage, sufficiently clear for me to say that it would not be harmful to the claimant’s interests for such an interim distribution to take place by March 31, 2014. Whether the source of these funds is from the equity in the home or other assets over which the claimant has control is up to the claimant. If obtained from the equity in the home, the parties will co-operate in securing the funds. The claimant shall be responsible for all costs, including interest, if any loan needs be taken out to secure the interim distribution subject to determination at trial of who should bear the responsibility for these costs."

From this I take the following principles

1. The amount of the proposed interim distribution must be necessary to enable the applicant to continue the litigation on an equal footing with the respondent.
2. The amount sought must reasonable in light of the anticipated cost of the litigation to the applicant.
3. The amount sought must not impinge upon the property interest the respondent is likely to receive as a result of the eventual trial.
4. An asset should not be liquidated to satisfy an interim distribution when there is doubt as to the extent of each party's interest in that asset.

It seems to me that the family law bar of British Columbia owes a debt to counsel for the applicant, Vincent Pigeon, for being the first to bring a successful application under s. 89.

My thanks to Agnes Huang and Todd Bell for bringing this interesting case to my attention.

Gotta Get a Get: Supreme Court Comments on Enforceability of Religious Marriage Contracts and Orders

Justice Nathan Smith of the Supreme Court of British Columbia has issued his judgment in Stav v. Stav, a case commenting on the enforceability of the obligations set out in a religious marriage agreement.

Background

The background to this decision is important, as the family involved has been engaged in litigation going back quite a few years. The parties were married in Israel in 1995, having signed a ketubah, a Jewish prenuptial agreement. Among other things, the ketubah contained a requirement that the husband pay $139,000 to the wife in the event of their divorce.

The parties eventually separated and were divorced in August 2011, following a trial. Among other things, the trial order allowed the wife to move back to Israel with the children.

The husband successfully appealed the trial order, and in April 2012 an order was made requiring the wife to return the children to British Columbia . The husband was awarded his costs of the trial and the appeal, amounting to some $70,000.

The wife neither paid the husband's costs nor returned the children to BC. The husband began a court proceeding in Israel to enforce the appeal order, which lead to the mother and children returning to BC in November 2012. At the same time, the wife commenced a proceedings in a rabbinical court, seeking a get, a Jewish religious divorce.

The husband consented to the get in October 2013. However, in May 2013 the rabbinical court awarded the wife $96,000 based on the payment required in the ketubah.

In June 2103, the wife started an action in British Columbia to enforce the judgment of the rabbinical court, and use the judgment to offset her obligation to pay the husband's costs of the trial and appeal.

The wife's action was heard by summary trial in January 2014, and it this decision which is the subject of this post.

Decision

The first hurdle with the court had to address was the status of the rabbinical order in Canada. Orders of foreign courts, religious or secular, have no automatic standing in Canada unless there is a reciprocity agreement between Canada and the other country. Support orders, for example, are the subject of reciprocal agreements between Canada, the United Kingdom, Australia, the United States and a number of other countries that allow our orders to filed in their courts for enforcement and vice versa.

If no reciprocity agreement applies, the court must determine whether it ought to recognize (and therefore enforce) the foreign order. Here is how Justice Smith summarized the law on this point, citing a 2003 case from the Supreme Court of Canada, Beals v. Saldanha (important bits in bold):

"[13] In considering whether to recognize a foreign judgment, the Court must first determine if the foreign court has a real and substantial connection to the action or the parties. If that test is satisfied, defences are generally limited to fraud, denial of natural justice, or public policy."

Although the proceedings in the rabbinical court clearly had a "real and substantial" connection to the parties, and indeed they both agreed the court could grant their divorce, the religious nature of the ketubah raises issues about public policy. We live in a secular society and the rules of the Divorce Act and the Family Law Act take precedence over religious laws.

However, the ketubah is not only a religious document it is an agreement, a contract which may sometimes be enforced by the civil courts. The judge then quote from another Supreme Court of Canada decision, Morris v Morris, decided in 1973, for this proposition:

"[20] ... That the contract is deeply affected by religious considerations is not determinative of the issue. That is the beginning and not the end of the matter. Some contracts rooted in the religion of a particular faith may indeed be contrary to public policy. Others may not. Our task is to determine whether the rights and obligations flowing from the marriage contract — specifically, the husband's obligation to give and the wife's right to receive a Get — are contrary to public policy."

In other words, a religious contract may be enforced as a civil contract, although provisions that offend public policy, like a provision that someone receive a certain number of animals, pay an outrageously high sum of money or have automatic custody of the children, will not be enforced.

Justice Smith was not provided with Canadian cases about the enforcement of ketubot, but did find a case addressing mahr, a payment owed to a wife upon marriage, like dower, under Islamic law. The judge quoted a 1998 case out of Ontario, Kaddoura v. Hammoud:

"[23] ... The Mahr and the extent to which it obligates a husband to make payment to his wife is essentially and fundamentally an Islamic religious matter. Because Mahr is a religious matter, the resolution of any dispute relating to it or the consequences of failing to honour the obligation are also religious in their content and context. … 

"In my view, to determine what the rights and obligations of Sam and Manira are in relation to the undertaking of Mahr in their Islamic marriage ceremony would necessarily lead the Court into the 'religious thicket', a place that the courts cannot safely and should not go."

In another case, Delvarani v. Delvarani, a 2012 from the British Columbia Supreme Court, the court examined the status of a "written religious marriage certificate agreement" requiring the husband to provide the wife with the following upon separation:

1. a copy of the Quran;
2. a crystal sugar stick;
3. a bunch of narcissuses; and,
4. 3,000 gold coins.

Considering that the parties separated within six years of their marriage, the court held, as cited by Justice Smith in Stav, that:

"I am simply not prepared to accept that [the husband] would have agreed to such an amount, nor would it have been a fair agreement as contemplated by the [Family Relations Act]. This is so particularly in light of the very short marriage and the fact that there is really no connection whatsoever between the amount of money to be paid, the length of marriage, the need or dependency of [the wife], or the ability of [the husband] to pay that amount."

However, these considerations are somewhat beside the point, interesting though they are, as the wife in this case never raised the issue of the ketubah at the 2011 trial, even though that trial dealt with the financial issues arising from the breakdown of the parties' marriage. This raises the issue of action estoppel: should the wife be prevented from suing on the ketubah now, because she had the opportunity to raise the payment owing under the ketubah at trial and failed to do so?

The judge drew the test to determine action estoppel from a 2011 decision of the Court of Appeal, Re: Cliffs Over Maple Bay (comments in square brackets in Stav):

"[36] ... 1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of 'finality']; 

"2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of 'mutuality']; 

"3. The cause of action and the prior action must not be separate and distinct; and 

"4. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence."

Sounds kind of like the situation in Stav, doesn't it? The judge thought so:

"[37] In my view, all of those requirements are satisfied here. The family law proceeding that was commenced in this jurisdiction and went to trial ... was intended to resolve all issues, including financial issues between these parties arising from the divorce, to the extent such matters were within the jurisdiction of this court. Both parties were resident in British Columbia at the time of the trial and judgment. The claim under the ketubah did not involve physical assets outside the jurisdiction. It was a purely monetary claim allegedly flowing from the marriage and its breakdown. It was a claim that could and should have been advanced at the time."

And the wife was left with yet another set of costs to pay. Ultimately, the issue in this case was decided on the question of action estoppel, however the judge's survey on the treatment of religious contracts and obligations in family law matters makes this case worthy of a second read.

My thanks to the ineffable Agnes Huang for bringing this case to my attention.

Sperm Donors May Have Obligations of Parents if Family Law Act Definition not Observed

The Lawyers Weekly recently ran a bit of news out of Kansas as a puff piece in their "lawdittities" column. The case in question, however, raises concerns about British Columbians who donate sperm.

In a nutshell, the Kansas case involved a man who had donated sperm to a lesbian couple and was subsequently found to be the father of the child, and therefore obliged to pay child support. This is how the Topeka Capital-Journal explained the decision:

In her written decision, District Court Judge Mary Mattivi said that because William Marotta and the same-sex couple failed to secure the services of a physician during the artificial insemination process, he wasn’t entitled to the same protections given other sperm donors under Kansas law. 

“Kansas law is clear that a 'donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman,' ” Mattivi wrote. 

“In this case, quite simply, the parties failed to conform to the statutory requirements of the Kansas Parentage Act in not enlisting a licensed physician at some point in the artificial insemination process, and the parties’ self-designation of (Marotta) as a sperm donor is insufficient to relieve (Marotta) of parental rights and responsibilities" to the child, the judge concluded.

The suit, by the way, was not brought by the mothers but the Kansas Department for Children and Families.

The point which alarms me is the judge's reasonable conclusion that the donor wasn't protected from parental status because he and the mothers did not follow the process prescribed by the local legislation.

Under ss. 24, 27, 28 and 29 of the new Family Law Act, up to two people who wish to have a child can have that child with assisted reproduction — defined in s. 20 as a means of "conceiving a child other than by sexual intercourse" — and, if they make an agreement prior to conception, they can also specify who the parents of the child will be. Such agreements can make the donors of sperm and eggs parents, along with the people who needed their assistance, and anyone who is a parent is a parent for all purposes of the act. This includes:

• being a guardian;
• exercising parental responsibilities;
• having a schedule of parenting time with the child; and,
• child support.

Of course, if the couple have used donated sperm or eggs or have an agreement says that the surrogate is not a parent, these rights don't apply and the donor or surrogate will not be obliged to pay child support. Party on.

The critical thing here is, from the point of view of donors of sperm, the need to conceive the without sexual intercourse. Although this rarely happens, it does happen, and so a warning to all men who might be tempted to assist in this manner: if the child is conceived by sexual intercourse, the child will not have been conceived by "artificial reproduction" as defined by the act, and you will be a parent of the child with the liability to pay child support which that status necessarily entails. Like the donor in Kansas, you will have to pay.

Pro Bono Survey

Canadian Lawyer magazine is conducting a national survey of lawyers' pro bono work. The survey is aimed at individual lawyers rather than law firms.

If you are a lawyer, please take the time to fill the survey out, whether you do pro bono work or not.