26 June 2014

SCC to Hear Appeal Involving Challenge to Validity of Child Support Guidelines

The Supreme Court of Canada today granted leave to appeal in the case of Strickland v Canada, a decision of the Federal Court. Two things make this unusual. First, the Supreme Court of Canada hardly ever grants leave to appeal in family law cases. Second, the appeal concerns the validity of the Child Support Guidelines.

The Child Support Guidelines were implemented by the federal government in 1997. They are a regulation to the Divorce Act; the Divorce Act is the federal law, in force across Canada, that deals with divorce, child support, spousal support and children's parenting arrangements after separation. (The Guidelines have been adopted by all of Canada's provinces and territories, except Quebec, as a part of their local laws on family breakdown.) The Divorce Act says that when a judge is making an order for child support, the judge must do so "in accordance with the applicable guidelines."

Although there are some exceptions, s. 3(1) of the Guidelines says that "the amount of a child support orders ... is ... the amount set out in the applicable table, according to the number of children ... and the income of the spouse against whom the order is sought." The tables are probably the Guidelines' best known feature and, as s. 3 suggests, they set out how much money must be paid as child support according to the payor's income and the number of children support is being paid for.

According to the decision appealed from, the appellants argued that the Child Support Guidelines "contradict the statutory provisions under which they were enacted," and therefore the federal government lacked the proper authority to implement them. The appellants took the view that the Guidelines:
"[5] ... do not appropriately reflect the requirements of the Divorce Act, which mandate that [child] support is a joint spousal obligation and is to be based on the relative ability of the spouses to contribute to the support of the children of the marriage. [They] argue that the Guidelines overcompensate the former spouses where there is a joint custody arrangement and the children reside part of the time with the payor parent."
One of the appellants signed an interim child support agreement and sought to lower the amount of his payments. Another appellant was making voluntary payments of child support which were calculated under the Guidelines. Another appellant was paying child support to one spouse as a result of an arbitrator's award and child support to a second spouse as a result of a court order. Another appellant was receiving child support and agreed that the amount should be lowered.

The reasons from the Federal Court don't tell us much more about the appellants' arguments than this, as the decision primarily concerns the federal government's application to turf the appellants' claim on the bases that the appellants aren't apply to make their claims, that their claims are no more than roundabout ways of attacking orders they don't like and that their claims are abuses of process. The court allowed the federal government's application, and it is this decision which the appellants have successfully brought to the Supreme Court of Canada.

Ultimately, this appeal is of primary importance as a result of the Federal Court's view on whether the appellants had the right to challenge a federal regulation, however if the Supreme Court of Canada allows the appeal, it will be very interesting to see what becomes of the challenge to the Child Support Guidelines when the claim is finally heard.

My thanks to Eugene Meehan's Supreme Advocacy newsletter for alerting me to the success of this leave application.

14 June 2014

Court of Appeal Issues Decision on Vexatious Litigation

The British Columbia Court of Appeal has just released its decision in Extra Gift Exchange Inc. v The Owners, Strata Plan LMS3259, in which the court summarizes and applies the case law on when someone can be declared to be a vexatious litigant.

This issue is important because serious consequences can follow from a judge's decision that someone has repeatedly started frivolous lawsuits. Under s. 18 of the Supreme Court Act, the court can make an order that someone not start a lawsuit in either the Supreme Court or the Provincial Court without permission from the court:
If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.
Section 29 of the Court of Appeal Act says pretty much the same thing:
If, on the application of any person, a justice is satisfied that a person has habitually, persistently and without reasonable cause commenced vexatious proceedings in the court, the justice may, after hearing that person or giving that person an opportunity to be heard, order that proceedings must not be brought or commenced in the court without leave of a justice.
(Making things even better — or even worse, depending on your perspective — s. 221(1) of the new Family Law Act says that a judge can make an order:
A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party
(a) has made an application that is trivial, 
(b) is conducting a proceeding in a manner that is a misuse of the court process, or 
(c) is otherwise acting in a manner that frustrates or misuses the court process.
Under s. 221(2)(c), the judge can also order that the person pay the expenses of another party resulting from this sort of misbehaviour, pay up to $5,000 to someone affected by the person's conduct or pay a fine of up to $5,000.)

Of course it's not at all clear what it means to start "vexatious" lawsuits "habitually," "persistently" and "without reasonable cause." (You can get a sense of some of the confusion on this issue from the comments to my posts "Litigation Conduct may Constitute 'Family Violence' under the Family Law Act" and "Supreme Court Releases Decision on Vexatious Litigants.") And this is why the common law function of the courts is so important: it's their job to decide how many times you have to do something to be "persistent" or "habitual," how much of a dog your case has to be to be brought "without reasonable cause" and how pointlessly irritating your conduct has to be to be "vexatious."

The Court of Appeal was dealing with a real doozy in Extra Gift Exchange, which essentially concerned a series of disputes between someone who'd bought a unit in a mall in Richmond and the strata company responsible for managing the mall and the behaviour of the unit owners. The litigation had gone on for about 13 years before getting to the Court of Appeal on the vexatious litigation issue, and involved 15 different lawsuits, mostly started by Extra Gift Exchange, that had resulted in five appeals. However, the circumstances of the present appeal are less important than the court's discussion of the law, which really boil down to a recapitulation of the Ontario High Court of Justice's 1987 decision in Re Lang Michener et al. v Fabian et al.

The court in Re Lang Michener decided that the following seven factors need to be considered when a judge is deciding whether "a person has persistently and without reasonable grounds ... instituted vexatious proceedings in any court," the test set out in the Ontario legislation (secret decoder ring translation in italics):
"(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
(Starting a lawsuit about a problem that a court has already decided may be vexatious;)
"(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(starting a lawsuit that is obviously doomed to fail may be vexatious;)
"(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(starting a lawsuit just to harass someone, not because you have a genuine problem, may be vexatious;)
"(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(recycling the same complaints and problems in lawsuit after lawsuit suggests that the litigation is vexatious;)
"(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(the court should look at everything that has gone on in the litigation to date, and not just look at whether the original lawsuit was reasonable, to decide if the litigation is vexatious;)
"(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(failing to pay court-ordered costs suggests that the litigation is vexatious; and,)
"(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings."
(bringing lots of losing appeals suggests that the litigation is vexatious.)
The court added three points to Re Lang Michener:
  • applications to extend time and other procedural applications in appeal proceedings won't usually suggest that the litigation is vexatious; 
  • the Court of Appeal can look beyond the appeal and consider a litigant's conduct in the trial court to decided whether the litigation is vexatious; however,
  • there must be some misconduct in the Court of Appeal and the frequency of appeals in the Court of Appeal must be vexatious.
Returning to Extra Gift Exchange, the court decided that aspects of how Extra Gift Exchange managed the litigation suggested that the litigation was vexatious (important bits in bold, as always):
"[42] In the Supreme Court, [Extra Gift Exchange] have demonstrated many of the hallmarks of vexatious conduct that were described in [Re Lang Michener]:
· They have demonstrated a propensity to re-argue issues that have been decided against them
· They have brought multiple proceedings of dubious merit replete with unsubstantiated allegations of conspiracy and fraud, that could be described as harassment of the applicants. 
· The proceedings seem to roll forward and duplicate proceedings that have already been dismissed or struck. 
· Their pleadings have been described as prolix and unintelligible
· There remain outstanding costs orders."
However, despite these seemingly damning conclusions, the held that:
"[44] I cannot conclude that the conduct in this Court, even informed by their conduct below, has yet risen to the level necessary to grant the order sought. My primary reason for saying so is that the frequency of appeals simply cannot be said to be vexatious. I acknowledge that the appeal in this case appears to have little merit and the factum is difficult to understand. But nevertheless, without a stronger pattern of abusive and vexatious conduct in this Court, I am unable to grant the order sought. I have some considerable sympathy for the position of the Strata. They may of course renew this application should [Extra Gift Exchange] conduct themselves in this Court in a vexatious manner. But so far [Extra Gift Exchange's] conduct does not reach that exceptional level that would merit limiting their access to this Court."
Although this decision was sure to disappoint the strata company, the court did note that other remedies were available to it, such as applying for an order that Extra Gift Exchange be require to pay money into court to make sure that funds are set aside to cover any costs order made against Extra Gift Exchange.

Ultimately, Extra Gift Exchange is less than helpful in clarifying readers' questions about how many times you have to do something to be "persistent" or "habitual," how bad your case has to be to be brought "without reasonable cause" and how pointlessly irritating your conduct has to be to be "vexatious." All we know is that the degree of your misbehaviour must be "exceptional," and that you should bear in mind the seven factors described in Re Lang Michener.

However, from a family law perspective, it helps to remember that the language used in s. 221 of the Family Law Act is different from the language of s. 18 of the Supreme Court Act or s. 29 of the Court of Appeal Act. What s. 221(1) talks about is:
  • applications that are "trivial;"
  • "misuse of the court process;" and, 
  • behaving in a manner that otherwise "frustrates or misuses the court process."
None of these three reasons for asking for an order that someone not make further applications or continue a lawsuit use the troublesome language found in the court acts, and it seems to me that Extra Gift Exchange may not apply to applications under s. 221 of the Family Law Act at all. When the legislature uses different language to discuss a similar concept in different laws, it's presumed to having a reason for doing so, and one obvious reason would be to make orders under s. 221 easier to get than orders under the court acts.

I should also say something about the other remedies the court talked about in Extra Gift Exchange. The Family Law Act is full of useful orders that the court can make to modify litigants' behaviour, including these:
  • under s. 223(1)(a), the court can dismiss all or part of a lawsuit or an application;
  • under s. 223(1)(b)(ii), the court can delay a lawsuit until someone obeys an order;
  • under s. 224(1)(a), the court can require parties to attempt to resolve their dispute outside of court; and,
  • under s. 227(a), the court can require someone to pay money into court as security for the person's good behaviour.
Although it can be terribly difficult to get an order declaring someone to be a vexatious litigant, as Extra Gift Exchange shows, the Family Law Act provides a number of useful tools that might accomplish something approaching the same result and ought to be easier to obtain.

09 June 2014

Number of Stay-at-Fathers on the Rise: US Study

The Pew Research Center, an American think tank based in Washington DC, has just published an important new study, "Growing Number of Dads Home with the Kids: Biggest Increase Among those Caring for Family" (PDF) comparing demographic data obtained in 1989 and 2012.

Although the study is an easy read and clocks in at a modest 15 pages, here are the highlights of their findings:
· Fathers made up 16% of all stay-at-home parents in 2012, up from 10% in 1989. These fathers said that they are mainly at home because:
· they are ill or disabled (35%, down from 56% in 1989), 
· they cannot find a job (23%, up from 15% in 1989), and 
· they are caring for their home or family (21%, up from 5% in 1989).
· At-home fathers are twice as likely to lack a high school diploma than fathers working outside the home. 
· 47% of at-home fathers are living in poverty, compared to 34% of at-home mothers. 
· 50% of at-home fathers have a working spouse, compared to 68% of at-home mothers.
The Center also polled the views of the public on stay-at-home parents:
· 51% said that children are better off if their mother is home and doesn't have a job, compared to 8% who said that children are better off if their father is at home and doesn't have a job. 
· 34% said that children are just as well off if their mothers work, compared to 76% who said that children are just as well off if their fathers work.
On the whole these results aren't too terribly surprising. They reflect traditional social expectations of the different household roles played by men and women, but also that these values are beginning to soften, with more fathers being stay-at-home parents and more of those fathers choosing the role in order to care for family. It would be interesting to look at the extent to which this trend correlates with women's economic opportunities and employment incomes.

03 June 2014

If I Were Tyrant: Three Changes I Would Make to the Legislation on Family Law

In response to my recent post on the unlamented defeat of Bill C-560, a reader asked:
"So if not this bill then what? What improvements would you like to see the federal / provincial government make?"
Although the question presupposes that the bill was intended to address an actual need, it raises a interesting though ultimately vainglorious and egocentric point. What would I do to improve the federal and provincial legislation on family law?

1. Get the federal government out of the corollary relief business.

The Constitution Act, 1867 is Canada's main constitutional document and, among other things, divides the powers involved in running a country between the federal government and the provincial governments. Under s. 91, the federal government has the power to make laws about marriage and divorce. Under s. 92, the provincial governments have the power to make laws about property, civil rights and "Generally all Matters of a merely local or private Nature in the Province."

Even though the federal government could make laws about divorce, it didn't bother doing so until 1968, by which time all of the provinces and territories had developed a good set of laws dealing with things like:
  • the legitimacy of children and establishing their paternity,
  • parenting arrangements after separation, 
  • child support, spousal support and parental support, and
  • the division of matrimonial property.
In passing the first Divorce Act, the federal government decided to include rules about parenting arrangements, child support and spousal support, partly because that's what they were doing in England and partly because these issues were thought to be "necessarily connected" to divorce. Of course, at the time hardly anyone was living in sin. If you were living together, you were married.

Today's Divorce Act still talks about the care of children, which it discusses in term of custody and access, and about child support and spousal support.  It also has rules about divorce orders, when the court has jurisdiction to make divorce orders, when divorce orders take effect, appeals of divorce orders and the recognition of foreign divorce orders.

I don't have a problem with the parts of the act about divorce, of course, but I do have a problem with the rest of it.

First, the Divorce Act only applies to people who are or used to be married to each other. This creates a two-tiered system of laws, with one set (the provincial laws) applying to everyone and another (the Divorce Act) applying only to married couples. The Divorce Act has subtly different rules that distinguish it from provincial legislation, including on variation applications, how people qualify as stepparents and when people other than spouses can ask for orders about children.

Second, the Divorce Act's language of "custody" and "access" doesn't mesh terribly well with the laws of provinces which have adopted more progressive terminology and concepts, like those of Alberta and British Columbia that talk about the care of children in terms of guardians who have parental responsibilities and parenting time, and people who are not guardians who have contact. There is a serious legal debate about guardianship and custody and whether all of the rights involved in guardianship are exhausted by orders about custody or vice versa, besides which the use of two different legal concepts to describe the rights of parents is ridiculously confusing and unnecessary. Quite apart from all of that, why should the provinces' ability to reform family law be at the mercy of the legislative agenda of the federal government?

Thirdly, the Divorce Act doesn't talk about property. This means you have provincial laws that deal with everything involved when a couple splits up and a federal law that deals only with some things. This is confusing and counterintuitive to say the least.

Fourthly, provincial courts generally don't have jurisdiction to make orders under the Divorce Act, including orders about children and divorce, while the provinces' superior courts can make orders under both the Divorce Act and the provincial legislation. Since the provincial courts are generally cheaper to make claims in than the superior courts, and their rules are generally much simpler and written in much plainer language, you often have people starting claims in the provincial court, only to find themselves: getting bumped to the superior court; dealing with orders on the same subject from different courts, couched in different language and possibly on conflicting terms; or having one proceeding in each court dealing with different legal issues.

It really would be so much simpler if the federal government simply got out of the business of custody, access, child support and spousal support, left those issues to the provinces and territories to deal with, and stuck with it's basic constitutional mandate on divorce.

2. Do something about the Spousal Support Advisory Guidelines.

The Spousal Support Advisory Guidelines is a paper prepared by two very well qualified law professors, Rollie Thompson from Dalhousie and Carol Rogerson from the University of Toronto, at the commission of the federal government. Their purpose was to see whether they could come up with a set of rules to guide judges and spouses in making orders and agreements about spousal support, and the Advisory Guidelines is the result. 

As it happens, I found myself generally agreeing with the results the Advisory Guidelines gave for the amount of spousal support payments, although I felt that the results for the length of time during which support should be paid were sometimes too long. The courts liked the Advisory Guidelines too, and over time more and more orders began to be made explicitly referring to the results produced by the Advisory Guidelines.

Professors Thompson and Rogerson never expected that the Advisory Guidelines would become a law, they thought that the Advisory Guidelines would infiltrate the world of family law and be adopted through custom of use. (I'm putting words in their mouths of course.) Sure enough they were right. Although the courts of Alberta have put up a fight, the Advisory Guidelines are regularly used to decided spousal support claims across Canada, and the Court of Appeal for British Columbia has even decided that it is an appealable error for a trial judge not to consider the results of the Advisory Guidelines!

But here's the rub.

First, the Advisory Guidelines are maddeningly vague in places. This is by design; the authors wanted to ensure that spouses and the courts had an abundance of discretion in deciding how the Advisory Guidelines would be applied. (I should know, I wrote a paper called "Obtaining Reliable and Repeatable SSAG Calculations" for the federal government and had lots of chats with Carol and Rollie about these peculiarities.) However, the odd spot of ambiguity has left a lot of people, and a lot of lawyers, scratching their heads when unusual circumstances arise, and from my point of view these ambiguities seriously undermine the certainty the Advisory Guidelines otherwise offer.

Secondly, although some of the mathematical formulae the Advisory Guidelines prescribe are simple enough and can be calculated on the back of an envelope, other formulae are not. The main "with children" formulae, for example, require calculation of the effect of spousal support payments to both parties, net of taxes and statutory deductions, and require a computer program or a doctorate in tax law to figure out. This is a real problem, because the two companies that make the software, DivorceMate and ChildView, charge about $900 for their products and quite reasonably won't sell them to persons not connected with the justice system. (DivorceMate has done a tremendous public service by contributing to a free public support calculator, mysupportcalculator.ca, although the calculator lacks the ability to handle some of the more complicated calculations a lawyer would manage through the commercially-available program.) To my way of thinking, it is unfair and unjust that someone's spousal support entitlement or obligation would rest on a calculation he or she cannot perform manually and cannot purchase the software to perform electronically.

Thirdly, the Advisory Guidelines are not a law or a regulation — they continue to exist only in the form of a lengthy paper — and this, to be frank, strikes me as bizarre. We have, through custom, adopted an academic paper as the means by which spousal support will be calculated in this country, and yet the paper has never darkened the doorway of Parliament to be subject to the review and scrutiny of our elected officials, or even the slight amount of thought cabinet would have given to such a regulation.

If I had my druthers, the Advisory Guidelines, which are fundamentally a very good idea, would be vastly simplified and reduced to a plain-language regulation, with simplified formulae and little or no room for interpretation. It would be compulsory rather than advisory, just like the Child Support Guidelines, and use calculations capable of completion by anyone who can master an income tax return.

3. Eliminate ambiguity.

Family law is a wonderful but maddening area of the law for many family law lawyers. It's wonderful because we provide meaningful help to people in a time of profound need and because it is delightfully complex and requires a knowledge of contracts, torts, tax, corporations, bankruptcy, creditors' remedies and the conflicts of law, on top of a significant psychosocial expertise. It's maddening because there are few, if any, hard-and-fast rules and the result in any given case often depends wholly on the circumstances of the particular couple and their children; a good family law lawyer needs to know the law and be able to assess the circumstances of the family in order to gauge the range of likely fair results.

On the other hand, the ambiguity which lends family law its richness is, or should be, a source of profound irritation for the people involved in a family law problem. You cannot just read the Family Law Act or the Divorce Act to figure out what's going to happen to you, your ex and the children; you have to understand how the circumstances of your family relate to the text of the legislation, and that's something that takes years to absorb. Take child support, for example. The only time the amount of child support payable is absolutely certain is if:
  • all of the children live with the recipient for unquestionably more than 60% of the time,
  • none of the children are over the age of majority,
  • the payor earns less than $150,000 per year,
  • there are no special expenses,
  • neither party has an undue hardship claim, 
  • the payor is not self-employed,
  • the payor is not a stepparent of any of the children,
  • the payor does not have any assets that could be used to generate income, and
  • there is no other reason to impute income to the payor.
Not so simple, is it? And child support is really the easiest issue in family law.

The reason for this confusion is fairly straightforward. When government makes a law, it wants the law to make the most sense for the most people possible. This is what the philosopher John Stuart Mill called a utilitarian approach: government's laws are meant to provide the greatest good for the greatest number of people. In other words, they're meant to work as well as possible for most people, most of the time. However, when a particular family comes before the court, it's not a huge mass of people showing up, it's just that one family, and the judge must take government's utilitarian legislation and apply it to that one family. This results in a conflict between what's best for the individual (the judge's job) and what's best for most individuals (the government's job), and what you ultimately wind up with is a dog's breakfast. This is why family law is so difficult.

Although I suspect that most people would agree with the idea that each family should get the result that's best for them, the conflict between the individual and most individuals yields legislation that doesn't mean what it says it means. The words on the paper that are meant to work for most people most of the time must be interpreted according to the needs and circumstances of the particular family before the court. This creates a huge amount of uncertainty and, fairly frequently, conflicting lines of cases that say exactly the opposite thing about the same problem — the case law on court costs is a good example of this. Of course, uncertainty means that when you and your partner are splitting up, you cannot just look at the law to figure out what should happen, you need to see a lawyer, and the lawyer you consult is taking a guess, although an informed guess to be sure, about what's likely to happen.

Unfortunately, this uncertainty results in people taking irrational positions and taking ill-advised risks. (Isn't this why we buy lottery tickets? Because we think that we just might win?) It also means that spending lots of money on lawyers is somewhat of an inevitability: you need the lawyer's expertise to guide you through the range of possible results, and you need the lawyer to defend you against the irrational positions of your ex.

On the other hand, say we had a system where legal principles were fixed and certain, and the level of discretion available to the court and to the parties was really scaled back. (Decisions relating to children would still rest on their best interests and input, of course.) We would have the benefit of laws that generally meant what they said and didn't need an interpreter to comprehend. The range of likely outcomes would be narrowed, and settlements would be easier to reach. Legal advice would be more certain and less circumstantial. You would know what was going to happen when your relationship ended before you got into it. Less people would go to trial.

All of this sounds good, I expect, but there is a downside. All of the people who need the exceptions to the rules wouldn't get them. For these people, the law would be rigid and inflexible and would absolutely be unfair. But the thing to consider is the extent to which the unfairness to these individuals outweighs the fairness, efficiency, expedience and certainty the majority of people would enjoy from a family law system that is less fixated on single-serving fairness.

And, since you asked, this is what I would do to improve the federal and provincial legislation on family law.

02 June 2014

Shared Custody Bill Defeated on Second Reading

Bill C-560, a bill to amend the Divorce Act tabled by Conservative MP Maurice Vellacott, was defeated by a whopping 80 to 174 at second reading on 28 May 2014.

If successful, the courts would have been required to impose a regime of shared custody — an equal distribution of children's time between their divorcing parents — except "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." This presumption would have applied to all new parenting orders made under the Divorce Act, as well as to all orders previously made under the unamended act.

Regular readers will be aware of my view that defeat was the most appropriate result for Mr. Vellacott's bill, his third or fourth at-bat on this issue since 2009. My reasoning for this position, which you'll find in my 20 December 2014 post "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season,"is fairly straightforward and boils down to this:
"... 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 vote and its results can be found in the record of the House of Commons debates for the day; do a search on the page for "560." I am very pleased with this result.