Setting Aside Agreements: Helpful resource from West Coast LEAF

I've just stumbled across a new — well, new to me — booklet from West Coast LEAF, Separation Agreements: Your Right to Fairness (PDF). This resource is aimed at people who have signed a separation agreement but have had second thoughts and want to set it aside because inadequate disclosure was made when the agreement was signed or because there was a power imbalance between the parties to the agreement. I know of lots of resources geared to helping people make separation agreements and file them in court, but this is the first I know of to focus on setting agreements aside.

In a nutshell, separating spouses and parents can resolve the issues arising from the end of their relationship by reaching an informal agreement, making a formal agreement, like a separation agreement, where everything is written down and the agreement is signed before a witness, or getting a court order. Informal agreements can be problematic because it can hard to prove the terms of the deal in the event of a disagreement. Going to court can be horribly expensive and take a great deal of time, and the decision will be made by someone who knows very little about the family.

Separation agreements, on the other hand, are a great way to go because the parties are able to negotiate the best solution to their particular problems in light of their particular circumstances; separation agreements can even include terms that can't be included in court orders. On top of this, agreements about parenting, child support and spousal support can be filed in court and enforced as if they were court orders, and the Family Law Act prohibits the court from making orders about spousal support and property and debt in the face of an agreement unless it sets the agreement aside.

Key to all of this, however, is the idea of negotiation, specifically fair negotiation, and this is where West Coast LEAF's special expertise comes in. West Coast LEAF was an intervenor in the famous (to family law lawyers) case of Rick v Brandsema, in which the Supreme Court of Canada said that separation agreements, even those signed after having legal advice, can be set aside if: one of the spouses made inadequate, incomplete or misleading disclosure of his or her finances; or, one of the spouses took advantage of a particular weakness or vulnerability of the other spouse, such as the spouse's ignorance, emotional state or precarious mental health.

The decision in Rick was profoundly influential on how the part of the Family Law Act about the setting aside of agreements about property was written. Here are the important parts of s. 93 of the act:

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; 

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; 

(c) a spouse did not understand the nature or consequences of the agreement; 

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement. 

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made; 

(b) the intention of the spouses, in making the agreement, to achieve certainty; 

(c) the degree to which the spouses relied on the terms of the agreement.

Subsection (3) summarizes the key points in Rick and these points are what West Coast LEAF deals with in its booklet. Setting Aside Agreements covers:

• the reasons why a separation agreement could be set aside;
• how to fairly negotiate a separation agreement;
• how to provide proper financial disclosure; and,
• how to work with a lawyer if you need to go to court to have a separation agreement set aside.

Obviously, Setting Aside Agreements can't cover all that there is to say on the subject, but it's a good, useful and very accessible starting point. My wikibook, JP Boyd on Family Law, is another place to get some basic information and discusses setting aside agreements on:

• cohabitation agreements, marriage agreements and separation agreements;
• enforcing agreements and the general principles of setting aside or changing agreements;
• changing agreements about children;
• changing agreements about child support and spousal support; and,
• changing agreements about property and debt.

Amendment to Code of Conduct Allows Lawyer Mediators to Give Advice and Handle Joint Divorces

The latest quarterly amendment update (PDF) to the Legal Profession Act, Law Society Rules and Code of Professional Conduct has been released to lawyers by the Law Society of British Columbia.

Amid the usual folderol that can be safely ignored by all except those in trouble with the Law Society are two important amendments to the commentary to s. 5.7 of the Code of Conduct, titled "Role of mediator."

1. The comment that lawyers should not give advice when acting as mediator has been rescinded. In its place, lawyers are referred to Appendix B of the Code on family law mediation, arbitration and parenting coordination which contains this modest stricture at s. 3: 

A lawyer who acts as a family law mediator or arbitrator or parenting coordinator for participants who are unrepresented must:

(a) urge each unrepresented adult participant to obtain independent legal advice or representation, both before the commencement of the dispute resolution process and at any stage before an agreement between the participants is executed; 

(b) take care to see that the unrepresented participant is not proceeding under the impression that the lawyer will protect his or her interests;  

(c) make it clear to the unrepresented participant that the lawyer is acting exclusively in a neutral capacity, and not as counsel for either participant; and  

(d) explain the lawyer’s role in the dispute resolution process, including the scope and duration of the lawyer’s powers. 

2. A new comment has been added to allow mediators to act for both parties in a joint divorce action.

A lawyer who has acted as a mediator in a family law matter may act for both spouses in a divorce action provided that all relief is sought by consent and both parties have received independent legal advice in relation to the matter.

Both of these amendments are aimed at dealing with the conflict issue that is believed to arise when lawyers act as mediators, namely that in "acting" simultaneously for two people opposed in interest the lawyer is in a conflict of interest, which had previously been addressed by the fiction of the law society's rule that lawyers must not give legal advice and must instead give only legal information. The reality of practice is that the lawyer mediator gives abundant "legal information" to both parties as an essential part of the lawyer's toolkit to reach settlement; it is a relief that the fiction has been recognized and dealt with.

The same conflict issue arises when the lawyer mediator is asked to get the parties to a mediation divorced, which is often a more or less a natural follow up to the lawyer's settlement of the parties' dispute. There are two types of basic divorce claim, the "sole divorce" where one spouse takes the initiative and sues the other for a divorce, and the "joint divorce" where the spouses cooperate and ask the court for the divorce together. The sole divorce is the usual way of doing things when a lawyer is involved. The joint divorce, however, is both faster and cheaper as you needn't pay for a process server or wait for the expiry of the reply period. However, a lawyer cannot "act" for the parties to a joint divorce as they are, theoretically, opposed in interest; hence the conflict. As a result, lawyers would typically offer to prepare the forms for the couple but not go on record as acting for either of them which, while very practical, simply ducks the issue and fails to obviate the conflict. The amendment allowing lawyer mediators to handle joint divorces is timely and most welcome.

Polyamory and the Family Law Act: Surprisingly Happy Bedfellows

In summer of 2013, the Canadian Polyamory Advocacy Association asked me if I could speak to a convention they were hosting on the subject of polyamory and British Columbia's new Family Law Act. Of course I said yes.

The Family Law Act is the province's general law about family and family breakdown. In the old days, this area of the law used to be called the law of husband and wife or the law of domestic relations. "Domestic relations" isn't such a bad term, because the range of legal issues and interested parties the law addresses isn't just about husbands and wives. The Family Law Act applies to:

• people who are, or used to be, married spouses;
• people who are, or used to be, unmarried spouses, which usually means that the couple lived together for at least two years in a "marriage-like" relationship;
• people who are parents of a child together;
• people who are family members when family violence is or may be a problem; 
• people parents ask to become guardians of their children; and, 
• anyone, such as a grandparent, who has an interest in caring for or spending time with a child.

Besides, we're well past the age of Leave it to Beaver, where all couples were straight, married and had two children. Family law just isn't as it used to be.

Anyhow, as I was preparing my presentation, I was struck by how very well the Family Law Act fit with the circumstances and legal interests of people involved in polyamorous or polyfidelitous relationships. Far from the moralizing finger wag of the federal Civil Marriage Act, the new provincial law practically throws the door open to non-binary spousal relationships! To be fair, I expect that this result was unanticipated, but it is nonetheless welcome and astonishingly progressive.

Who is a "spouse"

Not too long ago, the only kind of legal "spouse" there was, was a married spouse. That's still the case under the federal Divorce Act, which defines spouse as "either of two persons who are married to each other."

In 1972, the provincial Family Relations Act, which was brand new at that point, gave unmarried couples who'd lived together for at least two years the right to claim spousal support from each other, and in 1978, the law was changed to define "spouse" as including married spouses and people who had lived together for at least two years in a marriage-like relationship.

We sometimes used to call unmarried couples in long-term relationships "common-law spouses," but this term was horribly misleading as many people in such relationships believed themselves to actually be married and in need of a divorce when they split up. The term actually actually refers to a common law rule from the middle ages that allowed to people to express their commitment to each other before friends and family and be validly married to each other without the necessity of a priest's incantations and wand-waving.

Under the Family Law Act now, spouse includes married spouses as well as:

• someone who "has lived with another person in a marriage-like relationship" and "has done so for a continuous period of at least two years;"
• someone who "has lived with another person in a marriage-like relationship" for less than two years and "has had a child with the other person;" and,
• people who used to be spouses.

What being a "spouse" gets you

During the spousal relationship, someone who is a spouse is obliged to provide the other spouse with the "necessaries of life" under the Criminal Code. The old common law rule is a bit more specific and requires husbands to provide their wives with adequate food, clothing and shelter, although he had a fair bit to say about what standard "adequate" meant.

After the spousal relationship ends, married spouses can use the Divorce Act to ask for spousal support, and for custody and child support for step-children as well as the couple's own children.

Under the Family Law Act, married spouses and unmarried spouses can ask for orders about spousal support, child support, parenting arrangements and contact, and married spouses and unmarried spouses who have been together for at least two years can also ask for orders about family property and family debt.

Other laws give spouses other rights, such as the family rate for the Medical Services Plan, the right to the Old Age Security spousal allowance or to share in each other's Canada Pension Plan credits. The key question you have to ask for all of these laws, including the Divorce Act and the Family Law Act, is this: "do I qualify as a spouse under this particular law?"

Spousal relationships

Under the federal Divorce Act and Civil Marriage Act, only two people can be legally married to each other. In fact, the Criminal Code makes it an offence for someone who is married to "go through a form of marriage with another person." Each person is a "spouse" of the other person:

A and B are each in a married spousal relationship with the other. Because of the legislation, it is not possible for A or B to be also in a married spousal relationship with anyone else.

Under the Family Law Act, and the old Family Relations Act, someone could qualify as an unmarried spouse while still being a married spouse. Most of this time, this happened when a married person had separated, started a new relationship, and lived with the new person for long enough to qualify as an unmarried spouse without being divorced from the first spouse. A number of my clients were quite unhappy to find themselves in this position. Here's how the spousal relationships work in a case like this:

A is in a married spousal relationship with B, but also in an unmarried spousal relationship with C.

Now you might think that the Family Law Act definition of an unmarried spouse as someone who "has lived with another person in a marriage-like relationship" would restrict unmarried spousal relationships to only one other person. In fact, I think it does. However, nothing in the act says that you can only be in one spousal relationship at a time!

Assuming that A, B and C have all lived together for at least two years in marriage-like relationships, A is in an unmarried spousal relationship with B and in a separate unmarried spousal relationship with C. B is in a spousal relationship with A and in another spousal relationship C. C is likewise in a spousal relationship with A and in a spousal relationship with B.

In fact, things could be yet more complicated, as long as each relationship meets the criteria of (a) living tother (b) for at least two years in a (c) marriage-like relationship. Here's a diagram of the spousal relationships among four people in a polyamorous relationship:

In this case, A is in three simultaneous relationships, one with B, another with C and yet another with D.

Lest anyone get too hung up on what "marriage-like" means, that's been addressed by the British Columbia Court of Appeal in a 1998 case called Takacs v Gallo as describing the couple's relationship with and commitment to each other, including whether the couple does chores for each other, sleeps together, shares financial obligations, goes to social functions together and so on.

Children

Under the Family Law Act, parents who live together are presumed to both be guardians of their children. This extends to people who are parents and had a child using a means of assisted reproduction. In fact, as a result of ss. 20, 29 and 30, a child could have up to five parents, all of whom are the child's guardians:

• up to two people who intended to have the child;
• a donor of sperm;
• a donor of ovum; and,
• a surrogate mother.

If a member of a polyamorous relationship happens not to qualify as the guardian of a child, the person can apply for a court order making them a guardian under s. 51.

Being a guardian is important, as only guardians have parental responsibilities, which means the right to make parenting decisions about all of the important aspects of a child's life, from choice of school to choice of health care, as well as having day-to-day care and control of a child.

Child support

Under s. 146 of the Family Law Act, the people who may have to pay child support include parents, guardians with parental responsibilities and stepparents. A parent, as we've discussed, includes biological parents as well as parents through assisted reproduction. A guardian includes people who aren't parents. Stepparent means people who qualify as the spouse of a parent and lived with the parent and the parent's child.

As a result, anyone in a cohabiting polyamorous relationship who qualifies as the spouse of someone in the relationship will be a stepparent of the person's children and be obliged to pay child support. Someone who is the parent of a child of a person in a polyamorous relationship will have to pay child support as you'd expect.

Spousal support

Under s. 160, if a spouse is entitled to receive spousal support, the other spouse has a duty to pay it. In a polyamorous relationship, this means that a dependant spouse might be entitled to collect spousal support from each other person with whom the dependant spouse is in a spousal relationship.

Family property and family debt

This is where the Family Law Act gets tricky.

Under s. 80, "spouses are both entitled to family property and responsible for family debt," and on separation "each spouse" gets "an undivided half interest in all family property ... and is equally responsible for family debt." "Both" means that there are two spouses in a spousal relationship, which is reinforced by the idea that each is entitled to "half" of the property and debt. I don't think that this section necessarily deprives any of the spouses in a polyamorous relationship of a property right, but it does mean that it's best if the relationships collapses all at once rather than one spouse at a time.

If the relationship collapses all at once, each spouse is entitled to half of the family property accumulating with each other spouse. A gets half of the property with B and half of the property with C. B gets half of the property with A and half of the property with C, and C gets half of the property with A, and half of the property with B. Once it all shakes out, everyone has an equal interest in all of the family property, and a three-way split it is.

On the other hand, say the spousal relationship between A and B craps out while the spousal relationship between A and C and B and C survives. A and B each take half of the family property, and C gets nothing until C's relationship with A or B terminates; when C's relationship with A terminates, C gets only half of A's half share! Instead of getting 50% of the total property, C gets 25% of the property. In other words, if you're in a polyamorous relationship and things are going sour, it's best to be the one who gets out first.

Cohabitation agreements

Interesting stuff, isn't this? Anyhow, what it all boils down to is that, apart from some awkwardness in relation to dividing property, people in polyamorous spousal relationships seem to be subject to pretty much the same legal rights and responsibilities as people in binary spousal relationships.

Because the law applies to people polyamorous relationships almost as it does to people in binary relationships, and because people in polyamorous relationships generally tend to enter them in a fully conscious manner, knowing what it is they're getting into, it makes sense that the people involved would also plan for the breakdown of their relationship. This will not only allow everyone to make make arrangements about:

• having children, and the parentage of children if assisted reproduction is going to be used;
• child care responsibilities during the relationship;
• contribution to household expenses and household chores;
• management of household finances, including joint accounts;
• purchasing new assets, and how those assets will be owned; and,
• new partners entering the relationship and existing partners exiting,

it'll help everyone figure out how those problems about the sharing of family property and family debt I just mentioned will be handled. A cohabitation agreement will help everyone manage the relationship and navigate the tricky thicket of legal issues that will arise when one or more partners leave.

As it happens, I know a number of talented lawyers who have prepared cohabitation agreements for people involved in polyamorous relationships, namely barbara findlay, Agnes Huang, Samantha Simpson and Zara Suleman, and I know a few others who are good lawyers as well and would be up to the challenge. Feel free to contact me for a referral.

Trial Starts Today for Bountiful Polygamists

CBC reports that the trial of the polygamy and child trafficking charges against two leaders of the Fundamentalist Church of Jesus Christ of Latter-day Saints from Bountiful, British Columbia starts today in Creston. It will be interesting to see how the trial turns out, given the opinions the provincial government has received from not one but two special prosecutors that the Criminal Code prohibitions against polygamy are likely an unconstitutional contravention of the Charter of Rights and Freedoms and the positive but restricting opinion of the BC Supreme Court on the question.

I have written about the polygamy issue previously in this blog:

• "Polygamy: The Legal Background" provides a synopsis of the old laws on marriage and divorce and the religious climate in which the criminal sanctions against polygamy originated.
• "Big Love Busted" reports on the 2009 arrest of the two leaders of the Fundamentalist Church of Jesus Christ of Latter-day Saints on polygamy charges and summarizes the relevant provisions of the Criminal Code.
• "Supreme Court Releases Decision in Polygamy Reference" summarizes the decision of the British Columbia Supreme Court on the provincial government's request for it to determine whether those provisions of the Criminal Code pass constitutional muster and the court's interpretation of those provisions.
• "No Further Reference of Polygamy Prohibition" briefly digests the provincial government's not to take the decision in the Polygamy Reference to the Court of Appeal.

This discussion about the criminality — and constitutionality — of the antiquated and pietistic prohibition against polygamy contrasts strikingly with what I perceive to be an increasing social tolerance of alternative family structures, including the polyamorist or polyfidelitous relationships of mature, informed and consenting adults. As mentioned in my post "Rethinking Marriage: Beta Marriages, Renewable-term Marriages and Other Interesting Ideas," the provincial Family Law Act actually supports and provides fairly comprehensive rights to those involved in polyamorous relationships, which I will write about shortly.

Update: 10 October 2014

Oh well, as it turns out the trial just got adjourned until 4 December 2014. According to the Calgary Herald, another jewel in the Postmedia Network empire's increasingly massive crown, the two accused appeared with only one wife in tow and the case was put over to allow the men to retain counsel. That their trial was nigh must somehow have escaped their attention. These things happen.

Children's Affidavits: Procedures, Cautions and Concerns

I was retained a few years ago to draft the affidavit of a fourteen-year-old girl for use by her father in an application to vary her parenting schedule. The child was bright, wanted to have her say and was aware of the probable impact of her affidavit on her relationship with her mother. The nature of the child's evidence made the experience unusually moving, and caused me to ruminate on the issue of children's affidavits; this brief note summarizes some of my thoughts.

The affidavit of a child can occasionally be helpful to your client's case. As the British Columbia Supreme Court put it in the 2012 case of L.E.G. v A.G., "a child's wishes can be a very significant consideration in a custody case." This strategy, however, can be highly problematic, and the difficulties therefore lie in making the decision to obtain the affidavit, and, having made that decision, in actually obtaining the affidavit.

I. Cautionary Considerations

A child swearing an affidavit in the course of litigation between his or her parents becomes involved in that litigation. The decision to obtain the child's affidavit must not be made lightly; as the Manitoba Court of Appeal said in a 1978 case called Jay v Jay, "it can never be in the best interests of children to be placed in a position where they become a part of the adversarial dispute between parents." I agree.

Giving an affidavit forces the child to take a position.

Although children, particularly older children, may form some degree of alignment with a parent following separation, many children manage the stress of their parents' separation by remaining noncommittal or adopting a flexible approach to the truth, providing each parent with information tailored in varying degrees to what the parent wants to hear.

Dad: "I made your favourite pizza, sausage and pepperoni!"
Child: "Awesome, my favourite! Your pizza's the best." 

Mum: "How was the dinner your dad made last night?"
Child: "Disgusting. I hate pepperoni."

Giving evidence in an affidavit forces the child to present a single statement of events and preferences. This may rob the child of a valuable coping strategy and exacerbate the stress of moving between homes.

Giving an affidavit increases the possibility of the child forming an alignment or choosing sides.

A child's evidence will inevitably favour one parent's perspective over the other. Depending on the seriousness of the evidence, giving an affidavit may entrench negative feelings and damage the child's relationship with the non-favoured parent, fostering a sense of allegiance toward the favoured parent and increasing the likelihood of estrangement from the other parent. This can be particularly problematic where the child's relationship with the non-favoured parent is already fragile or the seeds of alignment are already present.

Making matters worse, affidavits create a permanent record of the child's statements. Once the child’s evidence is written down, it's there for all time to be worried over, reread and fretted about. Depending on the nature of the child’s evidence, the affidavit may damage the child's the relationship with the non-favoured parent well into the future and significantly impede reconciliation.

Giving an affidavit exposes the child to the possibility of a further role in the litigation.

Under s. 10 of the Canada Evidence Act and the provisions of most provincial evidence acts, a person preparing a written statement can be cross-examined on his or her affidavit. The potential subject matter of such examinations is broad and would include not only the issues addressed in the affidavit, but the child's truthfulness and credibility; the circumstances under which the affidavit was elicited and prepared; and the extent of the client's involvement in obtaining the affidavit and influence over its content.

Taking an affidavit exposes the drafting lawyer to the possibility of a role in the litigation.

Legitimate areas of enquiry at trial will reasonably include the circumstances under which the drafting lawyer came to see the child, the information provided to the lawyer, and the extent to which the content of the affidavit had its origin in the child’s mind versus another source. The drafting lawyer will be the obvious source of information.

In my view, the child isn't the drafting lawyer's client, the client is the person retaining the lawyers' services, and whatever privilege is to be had likely extends to the lawyer's communication with that party and counsel on the party's behalf, but not to his or her communication with the child.

II. The Canada Evidence Act

The provisions of the Canada Evidence Act relevant to children's affidavits are ss. 16 and 16.1, and the provisions of these sections are instructive to both the lawyer considering obtaining the affidavit of a child and the lawyer retained to prepare one. In essence, children who are fourteen and older are presumed to be competent to give evidence, including by affidavit, in the manner of adult witnesses. Counsel seeking to have the affidavit of such a child excluded must be prepared to challenge the mental capacity of the child; I cannot imagine many children who would be receptive to this line of enquiry.

Children younger than fourteen are competent to give evidence as long as they can understand and answer questions, however they must give their evidence on promising to tell the truth, not upon oath or affirmation.

III. Choosing the Drafter

Prudence suggests that the drafting lawyer be someone other than the lawyer seeking to obtain the affidavit, for two reasons. Firstly, the lawyer seeking the affidavit will want to minimize the perception of the client's influence in obtaining the affidavit; see for example the excoriating comments of the British Columbia Provincial Court in the 2009 case of Director of Child Family and Community Service v. T.T. Secondly, the lawyer seeking the affidavit will want to minimize the likelihood of becoming a witness in his or her own trial, explaining how he or she assessed the child's competence to give evidence and his or her role in preparing the child’s affidavit; there is no privilege in the relationship between counsel and witness.

The T.T. case, by the way, is well worth a read.

IV. Deciding to Obtain the Affidavit

Despite the indulgent approach of the Canada Evidence Act toward the receipt of children's evidence, the lawyer seeking the affidavit will want to ensure that the child's affidavit will be useful to the client and advance the client's case before taking any further steps. If the proposed affidavit will serve neither purpose, stop.

The evidence the lawyer hopes to obtain should be relevant, critical to the case, concise, clear and unambiguous, and capable of interpretation without reference to other materials. Is the child likely able to deliver?

Consider the age and maturity of the child.

Will the child be able to express him- or herself to drafting counsel? Is the child capable of recalling and describing events in a comprehensible, ordered manner?

Consider the child's ability to express a preference.

Is the child's sense of self sufficiently developed to form an opinion? To what extent is the child likely to have formed his or her opinions through independent reasoning? The judge in M.E.S. v D.A.S., a 2001 case of the Alberta Court of Queen's Bench, had this to say on the subject:

"In the case at bar, the two children's affidavits in this matter are clearly drafted by the husband in his usual offensive manner. The many points made in the two children's affidavits contain the classic pattern and trademark of the husband's voluminous other writings in this file. 

"To allow these two affidavits in would countenance yet another abuse of the court process by the husband. Effectively, entering the affidavits would be tantamount to allowing the husband to advance and advocate his case further in his own words under the guise of and cloak of his children's reflections."

The court made comments to a similar effect in Hackett v Leung, a 2010 case of the Ontario Superior Court of Justice:

"[The child's affidavit] was filed by the mother in these proceedings. Based on the submissions that I have received, I am satisfied that the Affidavit was not written at the request of [the child] for the purposes of her seeking to be heard independently. Rather, the Affidavit was sought by her mother, for her mother's purposes, and to support her mother's position. Clearly, this pits this child against her father in a public forum. In my view, it exhibits poor judgment and selfishness on the part of the mother, and is a clear instance of the mother putting her own self-interests ahead of her daughter. In my view, it is inappropriate, in the extreme, to involve [the child] in this conflict in this way."

These are not the sort of conclusions you will want the court to reach.

Consider the nature of the evidence you would like to obtain relative to the position you will be arguing.

Will the child's affidavit actually add something to your case? Is the evidence you are hoping to obtain essential? If the answer to both questions is no, stop.

Consider the nature of the evidence you would like to obtain relative to the child.

Will the child be comfortable discussing the subjects about which you are hoping to obtain evidence? Will the child be comfortable expressing an opinion? In part these concerns hark back to my earlier comments about alignment (imagine, for example, the likely consequences of asking a child to describe an episode of physical conflict between his or her parents!); in part, it is a matter of being sensitive to the child's comfort level and the degree of opprobrium attached to the subject matter the child is being asked to recount.

Consider the child's willingness to provide an affidavit.

Is the child interested in expressing his or views to the court? Does the child want to provide an affidavit? If the child demonstrates any reluctance to give a statement, the lawyer seeking the affidavit should either pull the pin on the project or, at the very least, advise drafting counsel of the child's reluctance as an issue to for him or her explore. Some children are almost chomping at the bit to finally have their say in the dispute between their parents; others, however, are reluctant to enter the fray.

V. Drafting Children's Affidavits

In my view, drafting counsel is free to accept or reject a retainer to draw a child's affidavit as he or she wishes. Whether the parents are joint custodians under the Divorce Act, or mutual guardians under the Family Law Act, is, I think, irrelevant to the lawyer's decision; there is no property in a witness and the making of an affidavit is not a therapeutic endeavour for which parental consent is necessary.

Assuming that the lawyer is prepared to accept the retainer, the lawyer should perform a conflict check in respect of both parents and obtain the following information:

1. the age of the child;
2. the existence of any verbal, linguistic, emotional or mental impediments which might affect the child's capacity to express him- or herself;
3. any deadlines by which the affidavit must be prepared;
4. any particular issues which the affidavit should address; and,
5. the child's probable attitude to preparing the affidavit.

Arrangements should then be made for the child to be brought to the lawyer's office.

Assess the child's basic competence.

A brief conversation with the child should suffice to satisfy the lawyer that the child has the emotional and intellectual maturity to give evidence. Bear in mind that the lawyer is not conducting a psychiatric competence assessment; the lawyer's standard of assessment is his or her own opinion and comfort level, not that of a mental health professional.

Easy ways to open the conversation for drafting lawyers include explaining your role, how you expect the meeting to unfold, and asking basic questions about the child's age, school, extracurricular activities and so forth. If the child understands the questions you are asking and provides you with intelligible, relevant answers, you have established the competence of a child under fourteen.

Confirm that the child wants to make an affidavit and that he or she understands the difference between telling the truth and telling a lie.

The child will be aware that his or her parents are in court. The drafting lawyer should confirm the child's understanding and explain the purpose of the meeting by saying something to the effect of "the judge would like to know how things are for you and what you think about things." This is neutral, true and doesn't place responsibility for the meeting on either parent.

The lawyer should explain that one way of giving telling the court what you think is to write down what you want to say, and that these written statements are called affidavits. Adjusting for the age of the child, the lawyer should: say something to the effect that when people make affidavits they have to tell the truth; ask whether the child understands the difference between telling the truth and telling a lie; and, explain that sometimes there are punishments when someone lies in court.

Children who are younger that fourteen should be asked if they will promise to tell the truth. Child who are fourteen and older need to understand the difference between affirming and swearing to the truthfulness of their statements.

The lawyer should emphasize to the child that if he or she is prepared to continue, the lawyer will be writing an affidavit based on what the child has said, and that the lawyer will ask the child to read the affidavit when it's done to make sure that the lawyer has gotten everything exactly right and just the way the child wants it. The lawyer should make sure that the child understands that it's not just the judge but also his or her parents who will be reading the affidavit, and ask the child to confirm that he or she wants to continue and make the affidavit.

Prepare the content of the affidavit by asking open-ended questions and using the child's own language to the maximum extent possible.

Asking simple questions about where the child goes to school, grade level and sports activities is an easy way of getting into the flow of the affidavit and ease into more difficult questions about the child's parenting schedule and so forth. The drafting lawyer should avoid making a beeline toward the object of the affidavit; this will likely be the most difficult part of the affidavit for the child. The lawyer should head toward his or her goal gradually, asking questions on subjects that get slowly closer to the evidence for which the affidavit is sought. It is important to preserve the integrity of the child’s evidence by asking open-ended questions that do not suggest an answer; most children can be prompted to keep talking and give additional information simply by asking "and then what happened?"

It's also important to remember that the evidence the lawyer is soliciting is the child's evidence, not the truth. If the child believes that his or her parents divorced when they separated or that there's a monster under the bed, so be it; the lawyer should draw the affidavit stating the child's understanding about when his or her parents divorced or where the monsters generally live. The lawyer should not correct the child's errors or act as censor.

The text of the affidavit should be drawn using the child's own language and quirks of phrasing as much as possible. Ideally, the child's parents should be able to hear the child speaking when they read the affidavit.

Give the child ample opportunity to read through and revise the affidavit.

I often read aloud affidavits I am preparing as I type. This gives the child the opportunity to hear what I am writing and offer corrections. It gives me the opportunity to clarify the child's statements – "is this it, have I got that right?" – and it helps the child to take some degree of ownership of both the process and the product. Whatever method the lawyer uses to draw affidavits, the child should be given a complete draft to read, with pen in hand, and offered the unfettered opportunity to take anything out, change anything and put new information in. The lawyer should avoid expressing any impatience, and encourage the child to make any changes he or she wishes: "this is your affidavit, not mine, and it needs to say exactly what you want it to say."

Remind the child of the importance of telling the truth and execute the affidavit.

Finally, when the affidavit is ready to go, the drafting lawyer should tell the child, with some pompous officiousness to underline the importance of the occasion, that he or she is now going to execute the affidavit. For children younger than fourteen, the lawyer should say something to the effect of "do you promise that the things you've said in this affidavit are true?" and take the child's signature. For older children, administering the standard oath or affirmation will do.

I then tell the child that the original copy of the affidavit will be going to the judge, and I always give a copy of the affidavit to the child. It is, after all, the child’s affidavit.

VI. Content Requirements for Children's Affidavits

Statutory requirements.

The Canada Evidence Act provides that children fourteen or older may give evidence on oath or affirmation. Under s. 16.1(6) of the act, however, children under the age of fourteen may not give evidence on oath or affirmation but upon their promise to tell the truth. This will require amendment to both the preamble, the introduction to the affidavit, and the jurat, the part where the person making the affidavit and the lawyer sign the affidavit.

Evidentiary requirements.

Under s. 16.1(3), the evidence of children under the age of fourteen may only be received if the children are able to understand and answer questions. The only person in a position to make this call at the time the affidavit is executed is, of course, the lawyer drafting the affidavit. This will require you to provide evidence on the point, either by a certificate attached to the affidavit or through a separate affidavit of your own.

In a 2007 case of the Manitoba Court of Queen's Bench called McMurray v McMurray, the court described the nature of the evidence required from a lawyer drawing the affidavit of a child:

"Firstly, such evidence should set forth the circumstances as to the independence of counsel swearing the child's affidavit i.e. who contacted them, who drafted the subject affidavit, and how much time was spent with the child? Secondly, who paid for counsel's professional time? Thirdly, and obviously most importantly, did the child deponent in counsel's professional opinion understand the nature of an oath or affirmation and further could the child, hopefully as evidenced by the affidavit, communicate the evidence provided? In other words, did the child volunteer the material and relevant contents of the affidavit to the drafting attorney."

Although this decision was given in the context of local legislation establishing a presumption against the evidence of children under the age of fourteen, the first and second points are applicable to the affidavits of all minors, and the third point would also be applicable to the affidavits of younger children under s. 16.1(3) of the Canada Evidence Act.

VII. Conclusion

Children's affidavits can be highly persuasive in family law cases, particularly when they address matters of importance and express an unambiguous preference which is clearly that of the child. However, merely soliciting the affidavit, whether it's used in court or not, involves the child in the conflict between his or her parents and is fraught with peril as a result. There are other, better means of eliciting children's views and placing them before the court, including views of the child reports and judicial interviews, all of which are discussed in detail in L.E.G. v A.G. In my view the appropriateness of these alternatives should be considered very carefully before the decision to obtain a child's sworn statement is made.

This post is an updated and edited version of an article of mine published previously by the Canadian Bar Association, which in turn was based on a paper I'd written in October 2012, probably for a family law course put on by the Continuing Legal Education Society of BC, although I frankly don't recall which one. I would like to thank a friend and colleague of mine, Alyson Jones, a prominent and talented West Vancouver child and family therapist, for reminding me of the CBA article. 

"Litigants' Rights and Responsibilities" Updated and Relocated

I have recently updated the content of the Litigants' Rights & Responsibilities page of this blog and moved it to a new home in my access to justice blog where it seemed to have a better fit. The transplanted page focusses on the rights and responsibilities of litigants without counsel, but applies to everyone who's involved in a civil court proceeding in Canada. The page talks about what litigants should expect from judges, lawyers and court staff, the help they can provide and they help they cannot. It also talks about litigants' obligation to learn about the rules of court, court processes and the law that applies to their proceedings.

I have been involved in a fair number of committees and organizations looking into rules reform, justice reform and access to justice over the years. Litigants' Rights and Responsibilities was something I first published in 2012 as a sort of bill of rights for litigants without counsel when I realized that we were spending a lot of time talking about the "problem" of self-represented litigants and the difficulties they at times pose for judges, lawyers and court staff, and not spending a great deal of time talking about the expectations litigants without counsel are entitled to have of judges, lawyers and court staff. Although the former approach is reasonable and understandable for those who spend their professional lives in the justice system, the latter recognizes that the justice system doesn't belong to us but to the clients whose need for justice it serves.

The contents of this page represent only my views and opinions, and I fully expect that others will take a different perspective on things; in all likelihood I have overlooked other important issues that need to be raised in the context of a discussion of litigants' rights and responsibilities. I welcome your contributions, comments and criticisms. In the meantime, I have preserved the Litigants' Rights & Responsibilities page here in order that the important comments that have been made since it was first posted will not be lost.