30 August 2014

Life as a Family Law Lawyer: Malevolent instigator of conflict or thoughtful advocate of settlement?

Over the winter holidays last year, I happened to comment on a private member's bill, Bill C-560 tabled by Conservative MP Maurice Vellacott, that would have amended the Divorce Act to establish a rebuttable presumption of shared custody (the equal division of children's time between their separated parents). I said some nice things about the bill — it would replace "custody" and "access" with less adversarial, more child-centred language; it would require lawyers to discuss counselling, parenting coordination and arbitration with clients involved in parenting disputes; and, a parent would be required to give 30 days' notice before moving — but I also said that a one-size-fits-all presumption about custody is not in the best interests of every child and that, in my view, the presumption the bill called for was wrong-headed.

Over the next few weeks, after a reader posted a call to arms on a men's rights website, I received a surprisingly high volume of comments. Comments are great, don't get me wrong; I welcome debate, disagreement and discussion, and the more the merrier. However, a lot of these comments ducked the issues I'd raised about Bill C-560 and attacked me personally, and family lawyers in general, for opposing the bill. Here's a sampling:
· Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it? 
· Perhaps being a Family Law lawyer you are just used to presenting baseless assertions. 
· I read this in its entirety and its a blatent attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment were to be made into law. Compensation cowboys, the scum of the earth. These liars makes the world a worse off place. 
· "However, from my perspective as a family law lawyer" In other words, from the perspective of an interested party, ie someone who has a keen interest in protecting your source of income.  
· "I act for men and for women and have no particular bias one way or the other" Meaning what, exactly? Does this mean that when you have a woman for a client you'll do everything to screw over her husband, and vice versa?  
· Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass. 
In other words, family law lawyers oppose sensible presumptions like the one proposed by Bill C-560 because we make our living provoking conflict between parents.

From my experience as a family law lawyer, this sort of argument is absolute rubbish, and I said as much in my replies to these comments. Here's what I said to the "interested party" fellow:
"I'm afraid you've got it wrong. I'm not an interested party, at least not in the sense you mean. I act for men and for women and have no particular bias one way or the other.  
"I'm also afraid that you are a bit mistaken [in] your assumption that family law lawyers drive conflict. Although some do to be sure, the vast majority of us, at least in Canada, are interested in obtaining just results as efficiently as possible. Who do you think is driving the increased use of mediation, collaborative settlement processes and other out of court solutions? In Canada it is lawyers. I and the vast majority of my colleagues are interested in achieving a reasonable settlement for our clients, not dragging things out through to trial.  
"Frankly, the profit motive you allege is irrelevant as well. Family law is a difficult, trying area of the law. If you choose to practice this area of the law, however, you find yourself drowning in work. When I was in active practice, I was referring two to five people a day out to other lawyers, not because I didn't like them or their problems, but because I simply couldn't take any more work. And trials, by the way, are extremely unpleasant. Twelve-hour days and working on weekends for the duration of a ten-day trial is no fun at all. It is horrible work."
This past July, I had the unique opportunity of sampling of the views of 167 judges and lawyers attending a national family law conference through a survey designed and organized with two prominent academics and the Canadian Research Institute for Law and the Family. Among other things, we asked a handful of questions about respondents' experiences with and opinions on shared parenting and shared custody, including this question:
Do you support enactment of legislation to amend the Divorce Act to create a presumption of equal care or residential time? Please explain.
To all those who believe that family law lawyers are unprincipled, unscrupulous, money-grubbing, conflict-fomenting vultures who provoke parenting disputes to line their own wallets regardless of the emotional, financial and social consequences to their clients, I present our respondents' replies to this question, edited to remove substantially similar comments in the vain hope of keeping this post to a reasonable length; my remarks continue afterward:
While the goal is laudable, I am concerned that many parents will get shared parenting on paper which will reduce their child support, and then not step up to the plate, leaving one of the parents with most if not all of the responsibility with much less income. 
There is a huge difference between saying that each parent will have parenting time, and then determining how much is appropriate, and saying that there should be a presumption of equal amount of time. ... The parenting time concept provides flexibility for the Court to determine what is in the child's best interest rather than taking away flexibility which a presumption would do.  
The current legislation is situation specific. Looking at each family situation specifically and tailoring the result to what works best for that family and situation is preferable to making one result for all situations. Parents can have a shared parenting arrangement if they so choose, it does not need to be legislated.  
Best interests test should always be the determinant of the issue, without a presumption.  
While not codified, there seems to be a presumption in law that mom will have the majority of care/residential time. There should be no presumption or at least an equal presumption.  Fathers are more involved this generation.  
Already many people presume that there should be equal parenting time and this would create a stronger platform for them, even when shared parenting may not be appropriate.  I believe that the court should still look at what is in the child's best interests.  A legislative presumption may make it too easy on judges to make a less detailed examination of the circumstances.  
It's not always in the children's best interests to have equal care.   
Yes, maybe. It might help reduce those files ... where parties are very entrenched about parenting time right out of the gate.  Stereotypically, moms think "I've been the one at home, so dad can't do it by himself" rather than think "yeah, dad can step up to the plate and take a more active role and wouldn't that be beneficial for the children going through this difficult transition". Both parties need to change their roles, moms need to reduce parenting time and increase employment efforts and dads may need to reduce employment efforts so that they can increase parenting time.  If it's the presumption of shared time then perhaps the parties will start there and then figure out logistically how close to shared can they can actually achieve month to month.  
It is preferable to avoid any presumption around parenting, families are unique and should be treated that way.  
We aren't there yet as a society. In my experience, the majority of custody cases are not "shared custody" cases  
I think it would take a lot of the heat out of family law disputes if there was a presumption of equal parenting. it may also smooth out the often unequal balance between parents created by different personalities or parenting styles which disadvantage, for example, a parent that disciplines. I think it would counter the move to involve children more in parenting disputes with the increasing use of lawyers to represent them.  
The test is and should be best interest of the children, considering what their experience with each parent has been prior to separation, how available and capable each parent is to provide full care after separation, and the needs of the children.  There should be no presumption of equal care or residential time but a careful analysis of the family system and dynamics focusing on what is best for the children. I think litigating for shared parenting is an oxymoron!  
the best interests of the children is still a good test and provides the flexibility that the court needs in individual cases  
I believe this could cause problems.  However, I would not be opposed to a presumption of "Joint Custody" understood as joint Guardianship and entitlement to decision-making and whatever degree of assuming rights and responsibilities of parenting.    Shared Parenting in the sense of some form of 50/50 residential care and control can not really be assumed since it is not always reasonable, viable, etc.  
Some child care experts argue that shared parenting isn't always in child's best interest. Sometimes better to have one place they call home with consistency  
it is appropriate to make parenting arrangements based on what is best for each particular family.  Beginning with a presumption of equal residential care means moving away from that standard  
Both parents should be responsible for the care of the children and have the opportunity for the children to reside with them  
This presumption is not in line with the best interests of the children in all cases.  A detailed examination of the parenting situation is the best method of determining the best parenting arrangement.  No presumptions ought to be in place, either in favour of shared parenting or otherwise.  If there is a genuine concern that not enough cases are resolved by way of shared parenting, this ought to be addressed through education of the bench and bar regarding the situations in which shared parenting is appropriate.  
Presumptions are not particularly useful. They promote positional stances that do not assist parents to craft a post separation parenting regime will be best for their child or children. Unless there is a good reason for it, and it is handled such that transitions are seamless and conflict free, shared parenting places too much unnecessary stress on children. I am not sure I as an adult could stand or thrive living in two different households for whatever period of time, be it week to week or two weeks and two weeks or the absolute worst; let's move every 3 and 4 days to satisfy the adults. This brings living out of a suitcase to a whole new level.  
I do, however, the simple notion of such a presumption may not work well in practice.  While it may be "presumed" I have seen numerous situations where same is nothing but a sham designed to affect support.  The interests of the children in NUMEROUS cases are secondary at best.  
In many situations equal care or residential time is not in the best interest of the child. Further, what age does this start at? There are studies that show equal care or residential time negatively affects a child's development.  
I believe that the parenting arrangements should simply be looking at the children's situation, and the parents' situation, and determining from there the best schedule.  Many intact families don't work based on each parent spending 50% of their time with the children, so why would it be appropriate to have parents after separation be presumed to share parenting when they likely haven't done so while intact?  
It would be a terrible mistake as the experience in California has shown. Each case is different and must be evaluated  
Presumptions have no place in the formulation of the best interests of the child.  This is fact dependent and should be based on a holistic view and the unique factual circumstances implicit within the determination.  
The focus needs to remain on the children in each particular case, and what is in their best interest.  It should not be presumed that it is in a child's best interest to transition to a new residence every few days.  If the goal is co-parenting (which does not require shared parenting or joint custody or equal time), there needs to be educational programs provided to give parents the tools they need to cooperatively parent post-separation, alternative dispute resolution services available, readily available and affordable parenting coordination, and mental health support/counseling services available.  
This is a step backwards from a child centred test to a focus on parental rights. Children are not property. Parents need to focus on their "responsibility" to meet children's needs, not their "right" to parent.   
I’m  not certain about this; a STARTING POINT, maybe, but it can create problems for  people in abusive relationships to have the burden of rebutting a presumption  
simply does not reflect reality, and would lead to endless litigation  
This will simply cause more litigation - if the parties can agree or there is a past practice of a shared physical parenting regime the court will order this or the parties will agree  
Not all cases deserve that presumption, where there has been abuse or an incapable parent or not in child's best interests   
An equal care presumption could be dangerous in certain circumstances. I believe it is more prudent to protect children who may be in a dangerous situation from the outset.  
qualified yes - as long as the best interests of the child prevail  
The focus must remain on what is in the best interests of the individual children. It is also my understanding from recent social science literature that children are not doing as well in so-called '50/50' arrangements as was hoped.  
The premise is admirable but not necessarily in the best interests of the children.  
in situations where parties were in the same home sharing the responsibilities I think there ought to be an examination of whether the parties were active parents before an assumption is made that just because they lived in the same home they should share equally in parenting time and responsibilities   
I think every child is different.  Some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.  As well, there continue to be a number of parents who cannot or should not have that type of parenting responsibility.  While there would certainly be situations in which it would be helpful, I think that more often than not, it would make things harder.  I also think that for those parents who truly are not able to be an equal parent, either due to their scheduling, or their abilities, it would create a negative stigma on those parents to give "primary care" to the other parent.  
There should be a rebuttable presumption. It would lead to more settlements  
This will help to eliminate the preliminary skirmishing upon breakdown of the relationship, which often involves causing false criminal allegations to be made.   
This is unrealistic for many people; it's an ideal, but not realistic for working class families tied to specific work schedules. There ought to be no presumption in any particular direction, in my opinion.  
Based on the social science literature I have read and my own anecdotal experience, I think that most children need a primary care giver and a "home base" when children are of a young age.  Too often my clients tell me that their children tell them they need to spend equal time with both parents because it is "fair".  I think that is putting the priorities of the parents ahead of the needs of the children.  
I am not a fan of presumptions.  Each case is unique and should be determined that way.  I see many parents, usually fathers, seeking shared parenting to reduce support obligations and this type of presumption could make that easier without properly considering the best interests of the children.  
Children should benefit from an equal relationship from both parents unless circumstances require otherwise  
Maximum time as is in the interests of child is preferable, because it recognizes that not all children do well going back and forth between two homes.  The week on/week off works for some, but for other children it causes a great deal of stress to not have a home base, to only be able to see friends in alternate weeks. It only works where the parents are able to look at the child's schedule, interests, etc., and allow her/him to have the same life in both homes.  
I don't think legislated presumptions are helpful, particularly if the focus of the enquiry is the best interests of the children.  
Given the unique circumstances of families and children, a presumption where children are involved is in my opinion not appropriate.  
the presumption the mother is the more suitable parent no longer applies  
the concept or philosophy of "equal" time can be achieved in many ways, some of which do not mean equal physical shared time.  It sometimes does not make sense to be trying to "equally" share 24 hours.  However, with such a presumption, conflict between the parties is immediately ignited as most lay persons see equal as being "alternating" weeks or "alternating" days.  Lawyers and professionals and judges should be creative enough to look at different ways of achieving "equal" or other residential arrangements that maximize contact and, frankly, are more in keeping with what the parents actually want or can manage.  
It removes an element of fighting.  
It is often not in the best interest of the child especially when the children are very young. ... This equal care is more about the parental rights and less about what is in the best interest of the child. Let’s use the premise of best interest of the child to determine parental time and not start with the premise that both parents should have equal time.  
I strongly oppose any departure from the best interests test.  Without this there would be an even stronger wholesale drive to parallel parenting which is not generally a particularly desirable structure for raising a child.  
There should be no consideration of anything but the individual child's best interests. Shifting to a presumption changes the focus from the rights of the children to the rights of the parent. 
The majority of families before divorce continue to be "traditional" with one parent doing most of the child care. I think it is bad for kids to be forced to spend even close to equal time with a parent who is ill-equipped to look after them properly.   
A presumption of equal care would not be a child centred approach and such a presumption would mean upheaval for children in circumstances in which children are already experiencing increased stress and anxiety.   
I don't think we can improve on the "best interest" test. Many families, when left to order their own affairs, do so in a way that has the children spend more time with one parent than another pre-separation. Why force the children into an artificial arrangement just because one parent wants to divide children the same way as we divide property?  
I act for many women who have been in relationships in which there has been domestic violence. For many of them an incident or incidents of domestic violence have been the reason for the breakdown of the marriage ... They are often disadvantaged at the time of attempting to negotiate the terms of care and residential time regarding their children both emotionally, financially and terms of power dynamics. Many are not in an emotional or economic situation to rebut a presumption of equal care or residential time even if it would be against the best interests of their children.  They neither have the means nor emotional energy to pursue litigation to rebut such a presumption. In these cases it would be detrimental to both mothers and their children for such a presumption to exist.  I have seen situations in my practise where an agreement to joint custody and guardianship has been used as a vehicle for harassment and control.  
It may reduce the importance of "status quo" immediately after separation which can cause fights  
It would create more litigation to overturn the presumption.  the Child Support guidelines have already created more litigious attitudes because of the effect of shared parenting on support.  
It is inaccurate in most circumstances.  One parent, still primarily the woman (but that is changing somewhat) assumes the bulk of the parenting responsibilities.  It will place women who are trying to leave situations of domestic violence in an even more vulnerable position than that which they already face when trying to end such relationships.  I also have concerns that we are confusing time with children as the basis of parenting.  While this is a core concept time share is not shared parenting.   Again I see women entering shared parenting regimes in which they take less child support (that they need), no spousal support because they won't litigate for themselves, and then continue to bear all the parenting responsibilities while the children are living an unstructured life that is prone to manipulation and increased conflict.  
this is what people want as many dads especially miss out on an opportunity for shared custody simply because they moved out of the family home and created a status quo of primary care to mom.  
Best interests of the children should always be the sole consideration.  It should not be an uphill battle for a parent to seek to have primary care when his or her ex is not a suitable parent.  
There should be no presumption it needs to be reviewed on a case by case basis. Leaves too much room for the bullies in the relationship to dominate (i.e. using the presumption because they know the weaker person will not fight)  
That has little to do with the best interest of the child which I believe is still the proper focus for the court. It also raises a support issue of significant concern in many cases.  
All families are different.  The presumption should be to the status quo of how children were parented during the marriage.  The goal is to focus on the children and their needs not to create a presumption of "equal division".  
I am wary of presumptions, and the prospect that that will reduce the scrutiny  and attention paid to this important issue.  
children have a right to equal access to each parent  
There should be no presumptive distribution of parenting time, whether shared or anything else. A one-size-fits-all approach will work well for some children but be disastrous for others; plus the potential for extremely adverse outcomes on initial chambers applications is extraordinary.   
Equal time with both parents is disruptive to the routine of young children and I find most parents who are wanting equal time are doing it to get out of paying the full amount of child support and to control the other ex-spouse.  Older children (13 and older) have a better ability to decide if they want to spend equal time with both parents.  Young children need the stability of having one home, with one set of rules.  
While I realize that hashing it out in court is not good for children, that presumption could have a chilling effect on claims for primary residence or unequal care regimes even where that is in the best interests of the child, particularly where the opposing parent is more domineering or litigious.   
I think that each case needs to be addressed on its own merits with the assistance of third parties where necessary.  I worked as a representative for children for 18 years.  The issue that came up time and time again was that while the children often wanted to be with both parents, the children wanted to have a "home base".  This is a very difficult issue which needs addressing.  The sharing of the children has to be as much about what is best for them and not so much what the parents think is best for the parents.  If the relationship between the parents will foster and improve the children's development and lives then that is an ideal case for shared parenting.  But more often than not, the issue is more about power and control than it is the child's best interests.  
It does not take into consideration the development of the various age groups. It seems that the legislator is more worried about the parent`s rights than what is in the best interest of the children. We are now having discussions as to what is appropriate for an infant and a toddler and it seems that it is imperative to their development that they be mainly with one parent as to form an attachment. Shuttling back and forth is not the answer.  
This will inevitably have the result that some women will bargain away their financial rights in order to maintain a pre-existing primary care 
Absurd idea...one "size" does not fit "all"...in addition that approach does not take into account the unique circumstances of each family and that family's children.  
our Judges already take the maximum contact factor very seriously and I believe if a presumption is created we will have impractical results and the power struggles will just find another forum 
pre-separation, mothers are still the main care giver.  Why change the dynamic for the child?   In my experience many fathers want 50% of the time and no responsibility. E.g.  Who books medical and dental appts.  Who does the leg work of finding the child care.   Equal residential time does not reflect reality for the child.  
Subject always to the best interests of the children, this should be the presumption     
In many families one parent is the principal parent and this often does not change in a divorce; child should have a right to the parenting he is used to.  
this presumes that both parents are capable and interested in parenting on an equal basis. We know from many significant reports and studies that even in shared parenting arrangements the mother continues to take on all of the primary parenting tasks - doing so most often with a reduction in child support.  
This is not always in the best interest of young children; difficult in high conflict cases and in cases where there is domestic violence.
This struck me as an interesting, and telling, range of comments. What I took away from reading these remarks is that, regardless of respondents' position on the shared custody proposal, the lawyers and judges we surveyed generally:
  • put the interests and needs of children before the interests of their parents;
  • placed a high value on the settlement of parenting disputes;
  • sought to defuse conflict and viewed litigation as a last resort;
  • demonstrated an awareness of the traditional and changing roles of mothers and fathers, and of the impact of family violence on parenting; 
  • supported shared custody when best for the children; and,
  • had given serious and considered thought to the merit of a presumption of shared custody and its implications for their clients.
I have always been tremendously proud to practice as a family law lawyer, and always felt terribly privileged to work with colleagues who were so highly ethical, principled and skilled in an area of practice that is demanding at its easiest and horribly fraught at its worst. The claim that family law lawyers are liars who exploit conflict for profit is insulting, juvenile and, as the answers to our survey suggest, baseless.

(I reiterate that the above is not a complete statement of the responses received to this open-ended, qualitative question, and should not be relied upon for analytical purposes. Not all respondents provided comments, and not all of the comments received have been reproduced. However, for those interested in the results of our survey, 77.4% supported changing the language used by the Divorce Act to address post-separation parenting to something along the lines of "parenting time," "parenting arrangements" or "parental responsibilities," and 23.2% opposed amending the Divorce Act to impose a rebuttable presumption of shared custody. Respondents also said that about 40 to 45% of their cases are resolved with an agreement or order for shared custody, and that about 75 to 90% of their cases resolve with both parents being responsible for making parenting decisions. A more complete report on the results of the survey will be published by the Canadian Research Institute for Law and the Family by the end of October 2014.)

22 August 2014

Supreme Court Releases Important Judgement: First Decision on Tracing, the Presumption of Advancement and the Valuation of Excluded Property

Last Friday, Mr. Justice Butler of the Supreme Court of British Columbia released his decision in Remmem v Remmem, a case which I suspect is probably the first case addressing how property brought into a relationship is to be handled under the new Family Law Act.

As frequent readers of this blog will know, the Family Law Act imposes a new plan for the division of property between separated spouses that is wholly different from the old Family Relations Act, and, if anything, is more along the lines of how property is divided under Alberta's Matrimonial Property Act and Saskatchewan's Family Property Act. This is how it works in a nutshell:
  • under s. 81, both spouses are entitled to an equal interest in the family property;
  • family property is defined in s. 84 as all property owned by either spouse on the day the spouses separate, including real property, corporate interests, bank accounts, pensions, retirement savings and so on;
  • the court can divide family property unequally under s. 95, but only if an equal division would be "significantly unfair," having regard to a list of factors set out at s. 95(2);
  • under s. 87, the value of family property — and only family property — is its fair market value, determined either at the date of trial or the date of settlement;
  • under s. 85, certain property, such as property brought by a spouse into the relationship and property received by a spouse as a gift or inheritance, is excluded from the pool of family property; 
  • under s. 96, excluded property remains the property of the spouse who owns it; however,
  • under s. 84, any increase in the value of excluded property during the relationship is shareable family property.
Although a short summary like this probably makes things look pretty straightforward, there are a whole bunch of questions that the legislation leaves unanswered. Here's a sampling.
1. What does "significantly unfair" mean? We have a whole lot of law on what "unfair" means, because that was the test under the old Family Relations Act to decide whether an unequal division was appropriate, but since the only other legislation in British Columbia to use "significantly unfair" as a legal test is the Strata Property Act, we don't yet know what the phrase means in a family law context. 
2. What do you do if you sell excluded property that you brought into the relationship during the relationship? Do you get a credit for that property against the pool of family property?  
3. What if you sold excluded property, like a car, to buy something that is family property, like another car? Is the new car your excluded property? Do you get a credit for the value of your old car? What happens if, when you separate, the value of the new car is less than what your old car was worth? Do you get the new car plus a credit against the family property? 
4. What happens if you still have your excluded property but it's gone down in value? Do you get the value of the excluded property at the date when you brought it into the relationship or the value of the property surviving at the date of separation?
Remmem goes some way toward answering difficult questions like these. The facts of the case are a bit complicated because the relationship was a long one and involved a mix of property brought into the relationship, property acquired during the relationship and property sold during the relationship. When the parties' relationship began, the husband owned a commercial fishing boat, a number of commercial fishing licences and a house which later became the family home. During the relationship, he sold some of the licences and acquired others, and incorporated a company through which he ran his fishing business. The company and the new licences were put into his name and the wife's name. The husband also sold the house he brought into the relationship to buy a new house; the new house was also registered in his name and the wife's name. Using the income from their fishing business, the parties bought other properties during their relationship and accumulated savings in the form of RRSP and TFSA accounts.

The major issues for the purposes of this discussion concerned the husband's fishing boat — should he be credited with the full value of the boat on the date that the parties' relationship started or the value when it ended? — and the house that the husband sold to buy the new house — should the husband be credited with the full value of the house he brought into the relationship even though he essentially gifted half of that value to the wife when he bought the new house? The status of the licences that the husband brought into the relationship and later sold was not an issue as the wife agreed he should receive a sizeable credit for their value.

Value of the Boat

This is how Mr. Justice Butler described the issue and the husband's position:
"[27] This issue concerns the proper approach to the exclusion of property which has depreciated since one spouse brought it into the relationship. [The husband] argues when interpreted liberally, the provisions of Part 5 of the [Family Law Act] allow the court to give credit to a spouse for the full value of depreciating property in certain circumstances. Specifically, he says where personal property which depreciates has been used by the family for business purposes, the court should exercise its discretion to exclude the full original value when dividing family property. ..."
Justice Butler's tidily succinct analysis of the statutory provisions, however led him to a contrary conclusion to that urged upon him by the husband (important bits in bold, as usual):
"[40] ... Section 85 [of the Family Law Act] excludes from the definition of family property, any property acquired by a spouse before a relationship began. Accordingly, any such property is not family property and the other spouse has no right to an undivided half interest in that property as a tenant in common. If that property increases in value then the increase would be family property pursuant to s. 84(2)(g). However, if it does not, pursuant to s. 96, the court has no discretion to order a division of that property. ... 
"[42] In British Columbia, the legislation provides that the property acquired by a spouse before the relationship began is excluded, not the value of the property. As a result, when property depreciates, no part of the depreciated property is subject to division. The court has no discretion during the first stage of its analysis (i.e. when determining the property is subject to division) to include the original value of depreciated property in the division exercise. In the present case, this means the [boat] is not and never was family property, and the ... value of the vessel in [when the relationship began] cannot be brought into the equation to apply against other family property
"[43] It is only at the very end of the exercise that equitable considerations come into play pursuant to s. 95. After determining the full extent of the family property, the court must go through the notional exercise of dividing that property equally. The court must consider if equal division would be 'significantly unfair'. If it would, then it is possible to order an unequal division."
To this point, then, the court has concluded that if property is excluded it is off the table for division as family property. Moreover, what is excluded is the property itself, not the value of the property, and as a consequence the owner of excluded property cannot look to the shareable family property to make up any depreciation in the value of excluded property. This follows the reasoning of Mr. Justice Harvey in Asselin v Roy, a 2013 case that was the first to deal substantively with the division of property under the Family Law Act:
"[222] In my view, s. 85 doesn’t provide for a tracing of otherwise excluded funds beyond the asset which was acquired through the disposition of her inheritance. Just as the claimant is entitled to no consideration for monies expended by her from the inheritance on matters such as travel or other disposables, if there is no equity or insufficient equity in [a property purchased with the inheritance] to repay her original investment [in the property], she cannot look to other family property to make up the difference."
Mr. Justice Butler then moved on to consider whether the husband might be entitled recoup the depreciated value of the boat through an unequal division of the family property, giving us a welcome opinion on the meaning of "significantly unfair" (cites omitted):
"[44] The [Family Law Act] provisions granting the court a discretion to order other than an equal division are very different from the provisions in the previous legislative scheme. Pursuant to s. 65(1) of the Family Relations Act, courts had a discretion to divide family property in unequal shares if the court found that the division of property (pursuant to agreement or the provisions of the FRA) would be unfair having regard to the factors set out in that section. The first and obvious difference between the discretion given under the FRA and the discretion given in Part 5 of the FLA is that in order to exercise the discretion, it is no longer sufficient to find that a division of property is merely 'unfair'. There must be a finding that the division of property pursuant to the statutory scheme is 'significantly' unfair. The Concise Oxford English Dictionary defines 'significant' as 'extensive or important enough to merit attention'. Significantly is understood to mean more than a regular impact — something weighty, meaningful, or compelling. In other words, the legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2). 
"[45] Of the factors set out in s. 95(2), the ones which have some importance to the assessment of unfairness here are (a) and (c): the duration of the relationship and the contribution of [the wife] to the career or career potential of [the husband]. The other factors are not relevant because there is no agreement between the parties, no family debt of significance, and neither party caused a significant reduction or increase in the value of family property or debt. 
"[46] The [parties'] 22-year relationship is a significant factor. The parties worked very much in partnership both to raise their children and to improve their financial situation. This factor strongly favours an equal division of family property. The fact that [the wife] supported and facilitated [the husband's] fishing career to the exclusion of her own career is not as significant. While this factor might suggest that family property should be divided unequally in her favour, it can be taken into account by an order for spousal support. 
"[47] In order to determine if it would be significantly unfair to divide the family property equally, the court must notionally divide the family property, taking into account the exclusions, in accordance with the provisions of the FLA. When that is done in this case, the parties will divide equally, family property with a value slightly in excess of $1.8 million. This figure does not include the RRSPs (of approximately $45,000) and CPP credits which will also be divided equally. Under the scheme of the FLA, [the husband] will receive credit for the excluded properties that he brought into the relationship, including the [licences that were sold] and the [house]. Under the scheme of the FLA, [the husband] will receive credits of $217,500 by way of the excluded properties: $100,000 for the [licences]; $52,500 for the [boat]; and $65,000 for the [house]. ... The fact that he receives a credit or benefit of only $52,500 for the [present value of the boat], rather than of $100,000 [value at the beginning of the relationship] is of little significance to the overall property division. There is nothing unfair, let alone significantly unfair about such a division and there is no basis for concluding this division of family property would result in a meaningful or compelling unfairness."
What's worth noting in this analysis is firstly the definition of "significantly unfair" as more than mere unfairness, but as weighty, meaningful or compelling unfairness, and secondly the judge's clear statement that the test for an unequal division of property under the new act is different and more onerous than the test under the old act. 

Further, the judge also laid out a convenient three-stage test to be applied where claims for an unequal distribution of family property are made.
  1. Determine the family property to be divided, excluding any property qualifying as excluded property.
  2. Undertake a notional equal division of the family property.
  3. Assess for significant unfairness in light of the global result that an equal division of family property would have as well as any credits received in respect of excluded property.
Although the court could have stopped after reaching its first conclusion, that the owner of excluded property cannot look to the shareable family property to make up any depreciation in value, applying this test to the unequal division argument left the court to weigh the $47,500 loss in value the boat had suffered since the beginning of the relationship against the excluded property the husband was keeping plus his share of a total pot of family property amounting to some $1,800,000. Given the judge's definition of significant unfairness, his refusal to order an unequal division of family property is perhaps not unreasonable.

The House

Here is the court's summary of the question raised by the husband's decision to register the new house, bought with the proceeds of the sale of the house he brought into the relationship, in his name and the wife's name:
"[48] This issue considers whether the transfer of excluded property into joint property reduces the value of the exclusion for the spouse that brought the property into the relationship. ..."
Under the Family Relations Act, this would not have been an issue at all: the assets that were shared were the assets that were "ordinarily used for a family purpose" during the relationship, and the nature of their ownership was irrelevant. Under the new act, however,
  •  the husband would have been entitled to treat the value of the old house as exempt from division; yet, 
  • under the presumption of advancement, a common law presumption that only applies to married spouses, he was deemed to have given half the value of the new house to the wife as a result of putting her on title; and,
  • the wife is entitled to treat gifts to her as excluded property under s. 85. 
(Section 85 has since been amended to correct this last problem by excluding only gifts from third parties.) Considering these problems, the court held that:
"[48] ... I have concluded that the purchase of property in joint names using the proceeds of excluded property does not reduce the value of the exclusion. The property provisions of the FLA are intended to be a complete code so that there is no need to examine the intention of the parties at the time of a transfer of excluded property to joint tenancy. To come to the opposite conclusion would bring uncertainty and a level of inequality into a property division structure that was intended to treat married and unmarried spouses equally and to provide for a greater level of certainty. ...
"[52] When I consider these difficulties, I conclude that the tracing provisions in the FLA, at least when applied to the circumstances in this case, are to be applied without considering or applying the presumption of advancement between married spouses. In other words, none of the excluded property – the fair market value of the [old house when the relationship began] – was gifted to [the wife] when the [new house] was placed in joint names. [The husband] remains entitled to the full value of the exclusion of $65,000.
This is a very important conclusion as it confirms that the property division scheme of the Family Law Act prevails over the common law presumption of advancement, thereby avoiding the significant problems that would arise were this not the case:
"[51] ... First, the apparent simplicity and certainty of the property division scheme would be lost. Exclusion would depend not only on whether property was owned prior to the commencement of the relationship or brought in by way of inheritance in the course of the relationship, but on other circumstances. The new scheme is easier to apply if subsequent transactions only have to be examined to see if property is derived from the excluded property. If the court also has to look at subsequent transactions to determine if property was gifted, it would have to consider the parties’ intentions in transactions which may have taken place many years before trial. This would be a difficult exercise which would require considerably more court time. Further, the amount of the exclusion would be different for married and unmarried spouses, a result that does not appear to have been intended by the legislation. The amount of the exclusion might also be different for married spouses in similar situations, depending on the conclusions arrived at as to application of the presumption of advancement."
This pragmatic approach is entirely in keeping with government's statement objectives of simplifying, and making more intuitive, the rules for dividing property. 

To put these conclusions into a nutshell, the court found that:
  1. The property division provisions of the Family Law Act are a complete code which excludes the application of the presumption of advancement.
  2. Family property purchased with excluded property is subject to an exclusion equal to the value of the excluded property at the commencement of the relationship.
The Legislation of Other Provinces

Finally, much has been made of the applicability of the legislation of other provinces to the interpretation of the Family Law Act. I am partly responsible for this; it was a reasonable inference to make given the similarity of the provisions of the new legislation in British Columbia to the existing legislation in Alberta and Saskatchewan, and I have encouraged people to look elsewhere when interpreting the new act.

Following this approach, counsel for both parties made arguments at trial based on the law of other provinces. However, Mr. Justice Butler found that the Alberta legislation contains "significant differences" from the Family Law Act by exempting the value of property from division rather than the property itself and in the generous latitude it allows for the unequal division of property. The legislation of Saskatchewan likewise takes a different approach to exempted property, the discretion available to the court to order unequal distributions of property and the discretion given to determine the fairness of an exemption. As a result, the court did not consider either the extraprovincial legislation or the case law interpreting that legislation:
"[40] As I have already indicated, the language in the FLA requires a different approach from that taken in either Alberta or Saskatchewan. ..."
When asking the court to adopt interpretations of the Family Law Act based on the legislation of other provinces, counsel should take care to ensure the similarity of the legislation with exactitude. I have previously written about the distinction between the treatment of the federal Divorce Act on matters relating to the care of children under Alberta's Family Law Act and that of the British Columbia legislation.

20 August 2014

Communication Resources for Separated Parents

The end of a relationship between parents can often be a lot more difficult than the end of a relationship between a couple without children: people who don't have kids can just ride off into the sunset and have nothing more to do with each other, but people with children will be in each other's lives for the indefinite future. The constant contact separated parents have with each other delays the time it takes to heal from the separation and, more significantly, provides lots of opportunity for ongoing conflict.

Some degree of conflict is, of course, normal. But there is a small segment of the separating population — estimated at anywhere from five to fifteen percent — whose conflict is excessive and way out of proportion to their actual legal disputes. I have had clients, both paid and pro bono, who had been involved in a dozen or more applications prior to trial and a dozen or more applications following trial; these are people whose court papers occupied six or more 3-inch binders on my shelf and whose correspondence files were measured by the pound not the inch. 

Although the stress and cost of these high-conflict disputes are destructively taxing on the parents involved, in many ways the people most affected are the children, and what's alarming about this is that parental conflict can negatively affect children well into their teens and adult years, and sometimes permanently. I won't go into this in any detail since you can get a lot more information on parenting after separation from my wikibook, but children exposed to conflict between their parents:
  • drop out of school at higher rates than other children;
  • have higher rates of truancy and delinquency, and involvement with the criminal justice system;
  • experience self-esteem issues and psychiatric disorders like depression and anxiety at higher rates than other children;
  • have difficulty dealing with conflict, and often handle their conflicts as they have seen their parents managing conflict; and,
  • have difficulty forming stable, trusting relationships as adults.
Given the severity of these potential consequences, anything separated parents can do to reduce their conflict, or to shield it from their children, is important and helpful.

One of the easiest ways parents can manage conflict is by changing how they communicate with each other. As a result, communication is one of the key subjects in parenting after separation courses, and is especially emphasized in the special parenting after separation courses offered to high-conflict parents in Alberta and Nova Scotia, and I am always on the lookout for resources and tools that can help parents communicate more effectively.

One of the best short resources I have seen recently is the Co-Parenting Communication Guide (PDF), produced by the Arizona chapter of the Association of Family and Conciliation Courts. This booklet offers plenty of good, practical advice and offers helpful tips for communicating by email, text message and telephone. My thanks to my friend and colleague Arlene Henry, QC for bringing this resource to my attention.

Making Plans: A Guide to parenting Arrangements after Separation or Divorce (PDF), published by the federal government, and Parenting After Separation: For Your Child's Future (PDF), published by the provincial government, both have helpful but brief discussions about positive communication skills and protecting children from conflict.

If you're looking for something more meaty, you might want to get ahold of two books by Robert Emery, a mediator and professor of psychology at the University of Virginia. Renegotiating Family Relationships: Divorce, Child Custody and Mediation and The Truth about Children and Divorce: Dealing with the Emotions so You and Your Children Can Thrive are excellent books and are written in easy to understand, accessible language. Both talk about the psychology of separation, the influence and effect of anger, managing conflict and putting children first. I read Truth many years ago, after I'd settled into life as a family law lawyer, and it provided me with many valuable insights that had an extraordinary impact on how I practiced family law.

Another useful book, directed specifically toward high-conflict parents, is Joint Custody with a Jerk: Raising a Child with an Uncooperative Ex, by Julie Ross, a counselling psychologist, and Judy Corcoran.

There are also a few internet-based tools that are designed to help parents communicate more clearly and more effectively. By and large, these tools keep calendars both parents can access, maintain to-do lists, and keep records of communication between parents. These include:
  • Coparently, a Canadian product which works on mobile devices;
  • Our Family Wizard, an American tool with lots of bells and whistles;
  • 2houses, a co-parenting tool produced by a Belgian company;
  • Cofamilies, another American product; and,
  • ShareKids, an American tool that adds photo galleries to the usual services.
I don't endorse any of these tools in particular. Note that the American tools will of course be programmed to default the American holiday calendar, but can be adjusted.

Do you know of any other useful booklets, guides and tools? Please tell me about them in a comment to this post.

15 August 2014

Quickscribe 2.0 Launched!: Important New Tool for Family Law Counsel

Quickscribe Services has just launched the long-awaited Quickscribe 2.0, which offers a boatload of useful new features and is a genuine and substantive improvement on 1.0.

The original version of Quickscribe was known for its legislation tracking service, which offered speedy updates to the provincial legislation and the more frequently accessed federal legislation, historical point-in-time tracking, and information about the status of bills, new regulations and new orders in council. Quickscribe was also much easier to use than the BC Laws and Legislative Assembly websites, and subscribers were able to program a variety of automatic alerts customized to the needs of their particular practice.

The new version continues these services and also offers:
  • some pretty slick PDF capabilities, letting you print or save to file all or some of a document;
  • an expert annotation service provided by leading practitioners;
  • an improved tracking and alert system, which will alert users to new annotations in addition to legislative amendments; and,
  • a collaborative annotation function that lets users build a database of annotations shared with a firm.
Quickscribe 1.0 likely would not have been particularly useful for family law practitioners, particularly when the Family Relations Act was the law of the land; we had two key statutes and one critical regulation to keep on top of, and rarely found ourselves needing point-in-time references to the Land (Spouse Protection) Act or the Fraudulent Conveyance Act. I had access to the system for a whole year, and maybe used it once. I'm sure 1.0 was an indispensable tool for general civil litigators, just not so much for members of the family law bar.

I've had the chance to browse around 2.0, however, and it seems to me that the new version will make a very useful addition to the family law lawyer's tool box. First, Quickscribe is likely the only way you're going to get your hands on a complete electronic copy of the Family Law Act without having to jump between parts. Second, the case law is developing at such a rapid pace, that you need a way of faster way keeping up with developments than waiting for the next practice manual or white book; users' ability to make public annotations could give us an extraordinarily useful resource. Third, a number amendments have already been made to the act, and more are in the pipeline, that we need to keep on top of — it's reasonable to assume that still more amendments will be made in the months and years ahead as further wrinkles in the new act are discovered.

A slideshow-style tour of Quickscribe 2.0 is available, as well as a free but time-limited trial subscription. Quickscribe is a web-based application, which means that it works on both Macs and PCs, and you won't need to download or install any software.