Important Study on Views of the Child Reports: Call for Participants

Rachel Birnbaum, a professor of social work at the University of Western Ontario, is leading a project examining the experiences of lawyers and mental health professionals who prepare views of the child reports, together with Nick Bala, a professor of law at Queen's University, and the Canadian Research Institute for Law and the Family.

We are looking for the input of Canadian family law lawyers and mental health professionals who prepare views of the child reports by completing a relatively short online survey. 

The results of this research may be used in research publications and presentations by Dr. Birnbaum, Professor Bala and the Canadian Research Institute for Law and the Family about children's participation in family justice processes. No identifying information will be collected from respondents and participation is of course entirely voluntary.

Survey

If you are a family law lawyer or mental health professional practicing in Canada who prepares views of the child reports, please log on to the survey at:

http://fluidsurveys.com/surveys/rbirnbaum/views-of-the-child-reports/.

Participant Information

Principal investigator

Rachel Birnbaum, Ph.D, RSW, LL.M.
Associate Professor,
University of Western Ontario, London, Ontario
800-265-4406, x 4431
rbirnbau@uwo.ca

Co-investigators

Nicholas Bala, J.D. LL.M.
Professor,
Queen’s University, Kingston, Ontario
613-533-6000, x 74275
bala@queensu.ca 

John-Paul Boyd, M.A. LL.B.
Executive Director,
Canadian Research Institute for Law and the Family, Calgary, Alberta
403-216-0340
jpboyd@ucalgary.ca

Invitation

This is your invitation to participate in a study that involves research to explore the benefits and challenges of children’s participation in parenting or custody disputes by Views of the Child reports, also known as Voices of the Child reports and/or Hear the Child reports. The extent to which Views of the Child reports effectively facilitate children’s participation in parenting or custody disputes and how such reports are carried out varies across Canada.

We would like to learn more about your views and experiences with these reports and ask that you complete an online survey, which should take no more than 30 minutes to complete and can be done at your convenience.

Ethical considerations about completing this survey

The benefits to you for participating in this study will be that you will contribute to the small, but growing body of research knowledge regarding these types of reports and their impact on children’s participation in family dispute resolution. We do not foresee any particular risk or harm to you as the surveys will be kept confidential and no data will be recorded that could link you to any information obtained. You can as well choose to answer all, some or none of the questions as you like.

Confidentiality

We will not ask you for any information that could be used to identify you; however we will ask questions about your gender, province of practice and professional background for demographic purposes. All of the information collected will be used for educational and research purposes only, and will be kept confidential to the extent provided by laws of Canada. If any reports or publications are produced using the results of this survey, the information collected will be reported in aggregate form only without any identifying information.

Fluid Survey is a Canada-based online survey system that allows individuals to complete questions confidentially and stores its data in servers located in Canada. The information you provide will be entered into a separate statistical database that collects aggregate data only, without any identifying information about you. All information and data will be held securely by Dr. Birnbaum.

Participation is voluntary

Your participation in this research project is completely voluntary. We know of no negative consequences for choosing to participate in the survey or withdrawing from the study at any point. You can answer all of the questions, some or none.

Publication of results

The results of this study may be published in professional or academic journals or presented at conferences. A summary of the findings of this study, when completed, will be available from Dr. Birnbaum upon request.

Whether or not you have completed the survey, if you would like to receive a copy of a summary of the findings for the study, please contact Dr. Birnbaum at 800-265-4406, x 4431 or by email at rbirnbau@uwo.ca.

Contact information and ethics clearance

If you have any questions about this study or require further information, please contact Dr. Birnbaum, using the contact information provided above. This study has been reviewed and received ethics clearance through the Research Ethics Board at King’s University College, University of Western Ontario, London, Ontario.

If you have any questions or concerns related to this research, please contact the Associate Academic Dean of King’s University College: 

Dr. Renée Soulodre-La France
Associate Academic Dean.
King’s University College, Western University, London, Ontario
800-265-4406, x 4424
rsoulodr@uwo.ca

Thank you for your consideration. Please keep a copy of this information for your records if you decide to participate.

Cloud Computing and the Family Law Lawyer

The Law Society of British Columbia has adopted changes to the Law Society Rules to address cloud computing for lawyers who store, or are considering storing, practice data in the cloud; the changes are based on the recommendations contained in the final report (PDF) of the Cloud Computing Working Group. Cloud computing allows data like emails, contact lists, photographs and so forth to be stored in a remote server and synced between various devices like a smartphone and a laptop, so that when you change something on one device you change it on all of your devices. Cloud computing can also allow you to store more important files, like word processing documents and spreadsheets.

 The Working Group identified a number issues raising significant concern with cloud computing, including these:

• privacy and the security of stored data from third party intrusion;
• lawyers' compliance with protection of privacy legislation;
• lawyers' compliance with Law Society auditing standards for electronic files;
• security of stored data from loss in the event of service failure;
• the reliability of the service provider;
• security of stored data from seizure by service provider;
• the status of stored data after termination of service provider; and,
• providing notice to clients as to where their data is being stored.

Perhaps most importantly, the Law Society has also adopted a thirteen-page (thirteen!) checklist (PDF) for lawyers considering using cloud computing. Among other things, the checklist asks lawyers to consider whether there are any laws, including federal and provincial privacy legislation, that restrict placing client data in cloud servers located or accessed outside of Canada. This last little bit strikes me as being especially worthy of note given that the USA PATRIOT Act (the title of the act is an acronym) allows US government agencies to rummage through electronic communications and gather data from US and non-US citizens without the necessity of probable cause or judicial oversight.

Now, I would expect that most family law lawyers don't rely very much on cloud computing, or at least not knowingly. (Here's a tip: if you can access a file on your office computer from home without logging into your office network, you are probably storing that file in the cloud.) However, DivorceMate has recently rolled out a version of its very popular support calculation program that relies on cloud technology to allow users to run numbers on the fly, in court or in an interview, and relies on Microsoft's cloud technology... which means that the data is stored on Microsoft's servers in the US, backed up by Microsoft in the US, and is therefore available to government agencies in the US should they care to look at it.

This raises some pretty serious concerns about client confidentiality. I spoke to the DivorceMate people this summer about the cloud issue and they said that they were aware of the problem. Although they don't have a  work-around for the storage problem yet, they did note that you can access their software in the cloud and simply elect not to save your calculations, so that the data doesn't wind up being stored Microsoft's servers. They may have another solution by this point.

A Short Survey of Cases on the New Family Law Act

The following is drawn from a presentation I recently provided to the Legal Services Society / Law Foundation of British Columbia's 2014 Provincial Training Conference for Legal Advocates. It contains my extremely brief summaries of what the courts have had to say about the various provisions of the Family Law Act, between 18 March 2013, the date when the act came into force, and 31 October 2014.

As with all of my work, you are free to copy, reproduce and redistribute this information as you wish, providing that you don't do so to make money and providing that you credit my blog as the source. However, be cautioned that this summary is not comprehensive (I have ignored much of Part 10 and all of Parts 6, 11 and 12, for example, and I have not included cases which are, in my respectful view, perhaps wrongly decided) and that my description of a case may not be accurate. You must read the cases themselves to make sure I've got it right. 

Most of the links to the cases referred to were automatically generated by CanLII's extremely cool hyperlinking tool. (Thank you CanLII!) However, I have made errors here and there in the spelling of the citation of cases which has caused CanLII to link to cases other than the ones I intended. If you spot an error, please post a comment to this post and I'll fix it as soon as I can.

Part I: Interpretation

“Family violence”, s. 1

Court should take a broad view of what constitutes family violence  

M.W.B. v A.R.B., 2013 BCSC 885

Demeaning remarks, blaming parent to a child qualify as family violence  

D.N.L. v C.N.S., 2014 BCSC 1417

Derogatory outbursts, demeaning comments qualify  

D.N.L. v C.N.S., 2013 BCSC 809

Threats, minimal physical contact qualify 

K.L.L. v D.J., 2014 BCPC 85

Litigation abuse, failure to cooperate qualify 

M.W.B. v A.R.B., 2013 BCSC 885

Behaviour causing financial hardship and stress, threats to cause financial hardship qualify  

Hokhold v Gerbrandt, 2014 BCSC 1875

Deliberate failure to pay child support intended to inflict emotional harm or control behaviour qualifies  

J.C.P. v J.B., 2013 BCPC 297; S.N. v E.C., 2014 BCPC 82

“Spouse”, s. 3

Someone separating within two years of Family Law Act coming into force is a spouse  

Meservy v Field, 2013 BCSC 2378

Parties living together for less than two years but have a child are spouses, even if separated before Family Law Act came into force  

C.A.M. v M.D.Q., 2014 BCPC 110

Merely living together doesn’t mean a relationship is marriage-like  

Matteucci v Greenberg, 2014 BCSC 1434; Trudeau v Panter, 2013 BCSC 706

Part II: Resolving family law disputes

Duty to disclose, s. 5

Intended to encourage earlier disclosure, imposes a duty to disclose at the outset  

J.D.G. v J.J.V., 2013 BCSC 1274

Imposes mandatory obligation to provide full and true information  

J.C.P. v J.B., 2013 BCPC 297

Parenting coordination, ss. 14 -19

Legislation intended to give parenting coordinators adjudicative powers necessary for role; parenting coordination intended to be cost-effective, should be cheaper than litigation; legislation intended to create alternative process to litigation; court should be reluctant to terminate parenting coordination agreement for minor or technical problem  

M.J.H. v C.D.S., 2013 BCSC 2232

May be appointed when future disagreements are foreseeable  

Rashtian v Barghoush, 2013 BCSC 994

…if there is “considerable conflict” 

J.C.P. v J.B., 2013 BCPC 297 

… if there is “inability to achieve rational compromise ” 

R.M. v N.M., 2014 BCSC 1755

If no ambiguity in parenting order, shouldn’t be appointed 

 McBeth v Lakey, 2014 BCSC 735

No substantive case law

• Duties of family dispute resolution professionals, s. 8
• Duties of parties, s. 9
• Confidentiality of information, s. 11

Part III: Determining parentage

No substantive case law

• Void and voidable marriages, s. 21
• Donor not automatically parent, s. 24
• Parentage without assisted reproduction, s. 26
• Parentage with assisted reproduction, s. 27
• Parentage with surrogacy, s. 29
• Declarations of parentage, s. 31

Part IV: Parenting

Best interests, s. 37

Best interests are only consideration 

Hadjioannou v Hadjioannou, 2013 BCSC 1682

Each of the s-s. (2) factors must be separately considered but “in the end the evidence has to be considered as a whole”  

M.W.B. v A.R.B., 2013 BCSC 885

Assessment of impact of family violence is mandatory  

J.C.P. v J.B., 2013 BCPC 297

Impact of family violence, s. 38

Analysis required involves consideration of each factor 

N.C.R. v K.D.C., 2014 BCPC 9

Expert evidence may assist court’s analysis 

Keith v MacMillan, 2014 BCSC 1352 

Guardianship, s. 39

Cannot apply for an order of “sole guardianship,” must apply for removal of guardian who is objected to

S.T.H. v R.M.G., 2013 BCPC 114

Court needn’t make an order declaring someone who is a guardian by definition to be a guardian, court simply acknowledges the fact  

K.L.L. v D.J., 2014 BCPC 85

However some judges “appoint”  

M.J.A. v R.D.A., 2014 BCSC 1222

…others make declarations confirming status as guardians  

T.T. v J.M.H., 2014 BCSC 451

…others just simply say that parents “are” guardians  

K.B. v A.S.R., 2014 BCSC 1642

Parenting arrangements, s. 40

There are no presumptions in favour of a parent that predetermine child’s best interests  

M.W.B. v A.R.B., 2013 BCSC 885

There are no presumptions of equal time  

Henderson v Bal, 2014 BCSC 1347

A person who is not guardian cannot have parental responsibilities, only contact  

C.L.T. v S.L.R., 2014 BCPC 131; M.A.G. v P.L.M., 2014 BCSC 126

Parenting arrangements, s. 40

Court may order “exclusive rights over all of the parenting arrangements,” without necessity of consultation

J.D.S. v D.Y.C.P., 2014 BCSC 1577

…may also simply order joint exercise of parental responsibilities per s. 40(2)

Shier v Shier, 2014 BCSC 998

…may conclude necessity of consultation is unreasonable and may assign responsibilities as best suits child’s best interests  

S.T.H. v. R.M.G., 2013 BCPC 114

…may give views of primary caregiver more weight as they are more familiar which child’s needs, but giving such weight must not be presumed  

K.L.G. v D.J.T., 2013 BCSC 1684

Parental responsibilities, s. 41

Court may order that some be shared and some not  

C.A.J. v N.J., 2014 BCSC 279; M.S. v G.S., 2013 BCSC 1744

…may assign primary care to one parent, with sharing of rest  

McCaw v Hawkey, 2014 BCSC 765

…may order “equal parental responsibilities”  

Wafa v Faizi, 2014 BCSC 1760

…may impose terms on sharing of parental responsibilities similar to Joyce and Horn models under Family Relations Act

J.L. v L.D., 2013 BCPC 201; Van Koten v More, 2013 BCSC 1076

…may require sharing but give one parent right to decide in the event of impasse with no other terms  

L.A.R. v E.J.R., 2014 BCSC 966

…may assign all to one guardian  

K.M.M. v D.R.M., 2014 BCSC 569

Parenting time, s. 42

Guardian has parental responsibility of day-to-day decision-making and care and control of child during parenting time  

A.B.Z. v A.L.F.A., 2014 BCSC 1453

Court may order that parental responsibility of day-to-day decision-making and care and control of child be vested solely in a guardian during his or her parenting time  

K.B. v A.S.R., 2014 BCSC 1643

Agreements on parenting, s. 44

An agreement for contact is not an agreement for “parenting arrangements” and cannot be enforced under this section

T.C. v S.C., 2013 BCPC 217 

Orders on parenting, s. 45

An application for parenting time by person applying for guardianship is contingent on outcome of guardianship application  

S.J.F. v R.M.N., 2013 BCSC 1812

If application for parenting time is brought in context of a plan to change residence, s. 46 applies  

S.J.F. v R.M.N., 2013 BCSC 1812

Only consideration is best interests per s. 37  

S.J.F. v R.M.N., 2013 BCSC 1812

Supervised parenting time, s. 45

Supervision orders must serve the interests of the child, nothing else; long-term orders are discouraged, but can be justified if in the interests of the child; case law sets out 15 factors that should be considered in making supervision orders

L.A.M.G. v C.S., 2014 BCPC 172

Relocation if no order, s. 46

Section applies to initial application for parenting arrangements when guardian indicates an intention to change child’s residence  

S.J.F. v R.M.N., 2013 BCSC 1812 

If existing order is for contact only, there is no order on “parenting arrangements” and s. 46 applies  

S.J.F. v R.M.N., 2013 BCSC 1812 

Section doesn’t apply if guardian has already moved  

De Jong v Gardner, 2013 BCSC 1303

Test: determine the parenting arrangements in the best interest of the children, based on each of s. 37(2) factors, plus the reasons for the change of residence; cannot consider whether guardian would move without child  

S.J.F. v R.M.N., 2013 BCSC 1812 

Relocation test under s. 69 “involves a more nuanced approach”  

A.J.D. v E.A.E., 2013 BCSC 2160

Changing orders, s. 47

Test: change of circumstance threshold from Gordon v Goertz, [1996] 2 SCR 27 applies, “change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”  

Gilmour v Herrick, 2013 BCSC 1591

Applicant bears burden of proving change in needs or circumstances of child  

M.R. v L.J., 2014 BCPC 39

Intervention of child welfare authorities, child’s election not to see a parent qualify  

J.L. v L.D., 2013 BCPC 201

…taking child out of school, mental health issues, family violence qualify  

T.D. v E.D., 2013 BCPC 135

…moves within the province where the parents already lived far apart may not qualify  

McNaught v Friedman, 2013 BCSC 1836

…breach of court order, parent’s discussion of adult issues with children, parent obtaining live-in caretaker may not qualify  

D.J.S. v J.M.D., 2013 BCSC 2302

…change in applicant’s financial circumstances may not qualify  

M.R. v L.J., 2014 BCPC 39

Informal parenting arrangements, s. 48

Presumption is against unilateral change without consultation, not against relocation

L.J.P. v D.L.B., 2014 BCPC 104

Appointment of guardians, s. 51

Requirements of s. 51 and rules of court on guardianship applications are mandatory  

L.A.M.G. v C.S., 2014 BCPC 172

Interim order may be made to provide person with standing of guardian for purposes of an application if in the best interests of child and in the interest of the administration of justice 

T.C. v S.C., 2013 BCPC 217

Terminating guardianship, s. 51

Should only occur in “most extreme situations”  

D. v D., 2013 BCPC 135

Test: first see whether with redistribution of parental responsibilities it remains in child’s interest that person remain a guardian; person ceasing to be guardian loses all parenting responsibilities and rights  

D. v D., 2013 BCPC 135 

 “By allocating or reallocating parenting responsibilities to a more capable parent as opposed to terminating guardianship, a child may safely retain the benefit of having a parent remain a significant part of his or her life”  

M.A.G. v P.L.M., 2014 BCSC 126

J.W.K. v E.K., 2014 BCSC 1635 is a good summary case

Orders for contact, s. 59

Person who is not guardian may only have contact  

C.L.T. v S.L.R., 2014 BCPC 131; S.J.F. v R.M.N., 2013 BCSC 1812 

Supervised parenting time, s. 59

Supervision orders must serve the interests of the child, nothing else; long-term orders are discouraged, but can be justified if in the interests of the child; case law sets out 15 factors that should be considered in making supervision orders

L.A.M.G. v C.S., 2014 BCPC 172

Denial of parenting time or contact, s. 61

Applicant must prove denial was wrongful  

Shaw v Shaw, 2014 BCSC 984

Court should not consider evidence of incidents beyond 12 month limit  

Shaw v Shaw, 2014 BCSC 984

Court cannot impose prospective sanctions in anticipation of future breach  

S.G. v M.G., 2014 BCPC 6; D.J.S. v J.M.D., 2014 BCSC 1143

Compensable expenses may include loss of income, increased living costs, travel costs, but applicant must prove the expenses claimed to have been incurred  

L.S. v G.S., 2014 BCSC 187

 “Missed parenting time should be assessed on a qualitative rather than a quantitative basis. Access days should not be totted up and traded back and forth like poker chips.”  

K.L.K. v E.J.G.K., 2013 BCSC 2030

Applicant must prove children missed a special event or activity, should provide plan or schedule for make up time  

K.L.K. v E.J.G.K., 2013 BCSC 2030

Permissible withholding of parenting time or contact, s. 62

Belief justifying withholding of parenting time or contact must be held at time of withholding, not established after the fact 

D.N.L. v C.N.S., 2014 BCSC 1417

Attempted use of force on the child to exact the scheduled parenting time or contact may justify withholding on basis of family violence 

D.N.L. v C.N.S., 2014 BCSC 1417

Application of Division 6, s. 65

Division is not intended to apply to interim applications  

S.J.F. v. R.M.N., 2013 BCSC 1812; A.J.D. v E.A.E., 2013 BCSC 2160

Division applies to separation agreements  

S.B. v N.L., 2013 BCPC 233

Focus is on children’s relationships and impact of relocation on those relationships; “to qualify as a relocation, the impact must be significant,” move within a municipality not significant  

Berry v Berry, 2013 BCSC 1095

Notice of relocation, s. 66

Degree of proof of delivery varies depending on severity of repercussions of missing 30-day time limit  

S.B. v N.L., 2013 BCPC 233

Notice can be provided by letter from lawyer

S.B. v N.L., 2013 BCPC 233; Klyne v Gardner, 2014 BCSC 1332

… by letter from guardian  

S.N. v E.C., 2014 BCPC 82

… by notice of motion  

Hokhold v Gerbrandt, 2014 BCSC 1875

Only a guardian has standing to object to relocation  

S.J.F. v R.M.M., 2013 BCSC 1812

Court may prohibit relocation despite expiry of 30-day period, court should consider length of delay in filing objection, reasonableness of explanation for late filing, prejudice to moving guardian if hearing allowed; prejudice relates to date of move and planning already undertaken  

S.B. v N.L., 2013 BCPC 233

Relocation, s. 69

Test: reasonableness of arrangements proposed depends on location; good faith factors are subjective, objective or both, and must be considered in light of the facts; best interests require analysis of each s. 37(2) factor  

L.J.R. v S.W.R., 2013 BCSC 1344

Test: good faith requires proof that not moving for improper reasons and that move will enhance child’s or guardian’s quality of life; reasonable arrangements means preserving child’s relationship with guardian, not augmenting or 
enhancing; best interests require analysis of each s. 37(2) factor  

T.C. v S.C., 2013 BCPC 217

If relocation is permitted, s. 70

Purpose of s. 70 is to preserve existing arrangements “to the extent that is reasonably possible” if relocation permitted, not to “fundamentally change the parenting arrangements”  

J.P. v J.B., 2013 BCPC 168

No substantive case law

• Referral of questions to court, s. 49
• Agreements on guardianship, s. 50
• Appointment of testamentary guardian, s. 53
• Appointment of standby guardian, s. 55
• Agreements for contact, s. 58
• Changing orders for contact, s. 60
• Failure to exercise time or contact, s. 63
• Non-removal orders, s. 64
• Order prohibiting relocation is not a change in circumstances, s. 71

Part V: Property and debt

Equal entitlement to property and responsibility for debt, s. 81

Pensions are family property subject to equal division under s. 81, and spouses’ half interest arises on separation

Stonehouse v Stonehouse, 2014 BCSC 1057; Joffres v Joffres, 2014 BCSC 1778

Entitlement under s. 81 rests on the definition of spouse, and entitlement commences on separation

Meservy v Field, 2013 BCSC 2378

The presumption of equal entitlement to family property and equal responsibility for family debt is the “starting point”

Remmem v Remmem, 2014 BCSC 1552

Family property, s. 84

Section 84(2)(g) modifies s. 85’s exclusion of property acquired before the beginning of the spousal relationship, “by including within family property the amount by which the value of excluded property has increased”

Williams v Killey, 2014 BCSC 1846

Family property is all property owned, or in which there is a beneficial interest held, by either spouse at the date of separation, and includes property acquired after separation with family property

Dhillon v Gaba, 2014 BCSC 1474; H.C. v H.P.C., 2014 BCSC 1775

Where parent of spouse provides funds for the spouse’s home, the funds are presumed to be a gift to both spouses and is therefore family property

Cabezas v Maxim, 2014 BCSC 767

Excluded property, s. 85

Onus of proof that property is excluded property lies on party claiming exclusion

Bressette v Henderson, 2013 BCSC 1661

Property acquired by a spouse before the relationship began, and property derived from that property, are excluded from family property

Cabezas v Maxim, 2014 BCSC 767

A spouse “has no right” to property that is not family property

Remmem v Remmem, 2014 BCSC 1552

Inheritances received by a spouse are excluded property

Thomson v Young, 2014 BCSC 799

Family debt, s. 86

Debts known of at the time of trial of a Family Relations Act property claim are res judicata and cannot be relitigated as a family debt by an action under the Family Law Act

G.M.W. v D.P.W., 2014 BCSC 482

A contingent reduction in debt does not alter the value of the debt to be shared between spouses

K.M.J. v J.H.D.N., 2014 BCSC 1895

Valuation date, s. 87

Date for valuation of family property is the date of the trial or agreement dividing it, and value must be based on fair market value; evidence of fair market value must be provided

H.C. v H.P.C., 2014 BCSC 1775

Interim distribution, s. 89

Applicant must detail anticipated expenses and explain why they cannot be met from earnings or funds from other sources  

L.L.J. v E.J., 2013 BCSC 1233

Cash advanced to fund litigation where parties have disparity in income and “proceed toward and into trial in very unequal circumstances”  

M.A.L. v N.A.L., 2014 BCSC 203

Exclusive occupancy, s. 90

This provision “does not appear to contemplate departure from the historical framework of analysis” under Family Relations Act

Longo v Longo, 2013 BCSC 1578

Applicant must show that shared use of home is a “practical impossibility” and that he or she should be preferred occupant on balance of convenience, applying Family Relations Act case law  

Ferguson v Ferguson, 2014 BCSC 216; Bateman v Bateman, 2013 BCSC 2026

Conclusion that family violence has occurred will influence decision given Family Law Act’s emphasis on the issue 

J.R.E. v. 07----8 B.C. Ltd, 2013 BCSC 2038

Agreements on property, s. 92

This provision recognizes the validity of oral agreements as well as writing agreements

P.N.K. v C.L., 2013 BCSC 1856; Thomson v Young, 2014 BCSC 799

Setting aside agreements, s. 93

Test: First enquiry concerns formation of agreement, second concerns effect of agreement, however even if unfairly reached court may decline to set agreement aside

Asselin v Roy, 2013 BCSC 1681

This provision is inapplicable to actions commenced under the Family Relations Act

H.J.S. v K.C.S., 2013 BCSC 998

Family Law Act attempts to codify the law enunciated in Miglin and Rick v Brandsema

H.J.S. v K.C.S., 2013 BCSC 998

Court may only set aside an agreement on property under s-s. (3) if there is evidence demonstrating one or more of stated circumstances

Forest v Forest, 2014 BCSC 1862

Court will only set aside an agreement on property under s-ss. (4) and (5) “if the division agreed to would be ‘substantially different’ from the division that the court would order and ‘significantly unfair’ to one of the spouses”

Thomson v Young, 2014 BCSC 799

Family Law Act recognizes rights of parties to enter into agreements “but provides for the setting aside and variation of agreements if they are unfairly constitutes or the result is significantly unfair”

Asselin v Roy, 2013 BCSC 1681

Orders for property division, s. 94

Purpose of section is “to give ascendency to such agreements unless they are set aside or vitiated on application under s. 93,” point is not to prevent court from making ancillary orders so as to enforce such agreements

Heid v Breland, 2013 BCSC 2412

Unequal division, s. 95

Test: court must first “go through the notional exercise” of equal division, then consider if equal division would be significantly unfair; “significantly unfair” is “compelling or meaningful having regard to the factors set out in s. 95(2)

Remmem v Remmem, 2014 BCSC 1552

“Significant unfairness” is a “caution against a departure from the default of equal division … only when an equal division brings consquences sufficiently weighty to render and equal division unjust or unreasonable should a judge depart from the default equal division.”

L.G. v R.G., 2013 BCSC 983

No substantive case law

• Rights and remedies of third parties, s. 82
• Protection of property, s. 91
• Division of excluded property, s. 96
• Donor of gift is party to agreement, s. 102

Part VII: Child support and spousal support

“Child”, s. 146

Family Law Act does not change law on whether adult child remains a child for support purposes  

D.M.P. v G.E.A., 2013 BCPC 117

Duty to provide child support, s. 147

All parents and qualifying guardians have a duty to pay support  

D.Z.M. v S.M., 2014 BCPC 198

Qualifying stepparents have a duty to pay support  

C.L.P. v N.D., 2014 BCPC 154

Purpose is to ensure children have consistent and reasonable standards of living; primary responsibility lies on parents and if parents can adequately provide stepparents are exempt, if parents cannot provide stepparent may be ordered to contribute  

C.B. v M.B., 2014 BCPC 75

Old case law from Family Relations Act and Child Support Guidelines s. 5 on stepparents applies  

Henderson v Bal, 2014 BCSC 1347

Amount of stepparent’s obligation is determined under Child Support Guidelines s. 5 along with new Family Law Act factors of length of relationship and standard of living  

C.L.P. v N.D., 2014 BCPC 154

…may result in stepparent paying no child support  

C.L.P. v N.D., 2014 BCPC 154

…may result in stepparent paying full amount  

S.S. v P.W., 2014 BCPC 177

…may result support obligation terminating before stepchild reaches age of majority  

Bouzane v Martin, 2014 BCSC 1690

See also U.V.H. v M.W.H., 2008 BCCA 177

Voluntary withdrawal, s. 147

Removal of children by state is not voluntary withdrawal intended by Family Law Act  

D.Z.M. v S.M., 2014 BCPC 198

Child’s refusal to visit does not amount to voluntary withdrawal  

Henderson v Bal, 2014 BCSC 1347

Child who is incarcerated for more than a year has voluntarily withdrawn  

M.A. v F.A., 2013 BCSC 1077

Agreements on child support, s. 148

Whether court would make a different order to be determined by applying the Child Support Guidelines  

Young v Young, 2013 BCSC 1574

Orders on child support, s. 149

Support from stepparents may only be ordered after stepparent and parent have separated  

D.J. & K.J. v C.K. & T.K., 2013 BCPC 197; C.L.L. v D.K.L., 2014 BCSC 1020

Amount of child support, s. 150

Quantum of child support continues to be determined by Child Support Guidelines  

Thibault v White, 2014 BCSC 497

Child Support Guidelines are unchanged by the Family Law Act, and old law on child support under Family Relations Act continues to apply  

S.M.L. v R.X.R., 2013 BCPC 123

Changing support orders, s. 152

Family Law Act makes it clear that child support orders can be changed retroactively  

S.M.L. v R.X.R., 2013 BCPC 123

Applicant must show that significant, long-lasting change occurred, that the change was real and not one of choice, and that every effort was made to earn money  

K.B. v J.O., 2014 BCPC 212

Test to retroactively reduce child support under s. 152 is different than test to cancel arrears under s. 174 because of “more stringent” test of gross unfairness  

A.B.Z. v. A.L.F.A., 2014 BCSC 1453

However, there are strong policy reasons to apply same standard to retroactive variation  

P.L. v J.D.L., 2013 BCSC 1492

Spousal support, s. 160

Court must first consider s. 161 objectives and consider the conditions, means and needs and other circumstances of the spouses under s. 162, analysis is a “balancing act”  

Quaife v Quaife, 2014 BCSC 1418

A duty to pay support only exists where entitlement exists, taking into account the s. 161 objectives  

S.S. v P.W., 2014 BCPC 177

Objective of support, s. 161

Language of Family Law Act is “substantially identical” to that employed in Divorce Act and “differs significantly” from that of Family Relations Act, courts should apply Divorce Act case law including Moge, Bracklow, Chutter and Yemchuk  

Rathlou v Haylock, 2014 BCPC 59

Outcome will be the same whether under Divorce Act or Family Law Act  

Sinclair v Sinclair, 2013 BCSC 2400

Determining support, s. 162

The provisions of Divorce Act and Family Law Act s. 162 “are so close” that “any difference is immaterial”   

Hutchen v Hutchen, 2014 BCSC 729

Spousal misconduct, s. 166

Payor’s failure to take meaningful steps toward employment and repeated applications to terminate support are arbitrary actions adversely affecting ability to pay support  

Peterson v Lebovitz, 2013 BCSC 651

Cause of failure of relationship not a factor to be considered  

Bateman v Bateman, 2013 BCSC 2026

Changing support orders, s. 167

Court must be satisfied that there has been a change in circumstances of a spouse, that new evidence has become available or that evidence of a lack of disclosure has been discovered, before changing or cancelling an order and must take that factor into consideration  

M.K.M. v P.S.M., 2013 BCSC 579

Changing support orders, s. 167

Test under Family Law Act is that under Divorce Act, with addition of new Family Law Act factors of new evidence and lack of disclosure  

A.B.Z. v A.L.F.A., 2014 BCSC 1453

Binding estate with support obligation, s. 170

Family Law Act makes it clear that ongoing support can be made binding on estate, overruling previous cases expressing doubt, however Family Law Act requires court to peer into future and guess whether other obligations of payor’s estate allow for ongoing payments; evidence must be provided of children’s life expectancies, payor’s estate and likely claims against estate  

Joffres v Joffres, 2014 BCSC 1778

Orders charging payor’s estate are not indefinite or incapable of discharge as payor’s personal representative can apply to change or cancel the order  

P.K.C. v J.R.R., 2014 BCSC 932

Life insurance, s. 170

Order requiring payor to maintain life insurance and designate spouse or child as beneficiary only available if payor has existing policy, court cannot require payor to obtain new policy  

R.M. v N.M., 2014 BCSC 1755

Priority of child support, s. 173

This provision used to support order for review of spousal support in the event the child support payments required are reduced or terminated in the future

S.S. v P.W., 2014 BCPC 177

Arrears of support, s. 174

Provisions of Family Law Act “virtually the same” as Family Relations Act  

Jensen v Jensen, 2013 BCSC 1373

Case law under Family Relations Act applies under Family Law Act, including Earle, Van Gool and Semancik

B.F. v J.F., 2014 BCSC 1892; Beavis v Beavis, 2014 BCSC 422

No substantive case law

• Child support if parentage at issue, s. 151
• Agreements on spousal support, s. 163
• Setting aside agreements on spousal support, s. 164
• Reviews of spousal support, ss. 168 and 169
• Post mortem support applications, s. 171

Part VIII: Children’s property

No substantive case law

• Guardian not automatically entitled to receive child’s property, s. 176
• Delivery of small property to child, s. 178
• Appointment of trustee, s. 179
• Delivery of large property to child, s. 181

Part IX: Family violence

“Family member”, s. 182

Father qualifies as “at-risk family member” to obtain protection order with respect to his adult son  

D.J.K. v J.J.K., 2013 BCPC 223

Person is not an “at-risk family member” if not “physically threatened” and family violence not alleged 

Whitelock v Whitelock, 2014 BCSC 1184

Protection orders, s. 183

Order will not be made in absence of finding that family violence is likely to occur  

Hughes v Erickson, 2014 BCSC 1952; Cabezas v Maxim, 2014 BCSC 767

“Even a single act” of physical violence may suggest that violence is likely to occur in the future, “likely” should be interpreted bearing in mind the potential gravity of the violence  

Dawson v Dawson, 2014 BCSC 44

History of psychological and emotional abuse constitutes risk supporting protection order, even when probation order is in place  

N.P. v I.V., 2013 BCSC 1323

Evidence of interference with property and trespassing may support protection order, even without proof as to identity of perpetrator  

Pellowski v Wright, 2014 BCSC 753

Making protection orders, s. 184

Party’s disappointment with result of application may increase the risk of violence, supporting protection order  

Chancellor v Chancellor, 2013 BCSC 1519

Court must have evidence of one of s. 184 risk factors to determine if family violence likely to occur, applicant’s assertion of risk or fear not sufficient  

Hughes v Erickson, 2014 BCSC 1952; Whitelock v Whitelock, 2014 BCSC 1184

No substantive case law

• Additional considerations where child is  a family member, s. 185
• Without notice orders, s. 186
• Changing or cancelling protection orders, s. 187
• Enforcement of protection orders, s. 188
• Conflict between orders, s. 189
• Extraprovincial orders, s. 191

Part X: Court processes

Time limits, s. 198

Spouses separating within two years of the Family Law Act coming into force are “spouses” for the purposes of the Family Law Act  

Meservy v Field, 2013 BCSC 2378

Cannot amend an existing claim brought within the Family Relations Act time limits to claim property under the Family Law Act if separation occurred more than two years of the Family Law Act coming into force

P.N.K. v C.L., 2013 BCSC 1856

Conduct of proceedings, s. 199

Section used to support making of conduct order  

C.P. v B.C., 2013 BCPC 112

… to support levying of fine for non-disclosure  

J.D.G. v J.J.V., 2013 BCSC 1274

… to support relaxing rules of evidence  

D.M.P. v G.E.A. 2013 BCPC 117

… to support court’s refusal to allow further adjournment of trial  

McDermott v McDermott, 2014 BCSC 1238

Children’s lawyer, s. 203

Applicant must establish that the degree of conflict is such that the parties’ ability to act in children’s best interests is significantly impaired; however, inability to act reasonably in connection with another party’s time with the children doesn’t necessarily amount to significant impairment of ability to act in children’s best interests  

K.L.K. v E.J.G.K., 2013 BCSC 2030

Leave to intervene, s. 204

Test: proposed intervenor must have a broad representative base, a direct interest in the proceeding, the issue before the court is suitable for intervention  

M.J.S. v A.D., 2013 BCPC 230

See Freldman v MacGarvie, 2012 BCCA 109 on the issue

Needs of the child assessments, s. 211

Family Law Act focuses on assessment of child’s circumstances rather than “family matter”, but general principles of ordering assessments under s. 211 unchanged from ordering reports under Family Relations Act  

T.N. v J.C.N., 2013 BCSC 1870

Threshold justifying order for assessment is “quite low”  

Smith v Smith, 2014 BCSC 61; Keith v MacMillan, 2014 BCSC 1352

Useful where conflicting evidence on parenting qualities, assessment helpful to obtain insight into parenting, child’s wellbeing  

C.M.L.S. v F.C.M.S., 2014 BCSC 1450

… where parents’ dysfunction leaves them unable to objectively perceive child’s best interests  

Keith v MacMillan, 2014 BCSC 1352

… where views of child report needed  

M.J.A. v R.D.A., 2014 BCSC 1222

... where objective view of child’s best interests is needed  

M.M. v C.J., 2014 BCSC 6

… where necessary to determine child’s preference as to residence  

Fox v Fox, 2013 BCSC 691

… where necessary to determine child’s preference as to parenting schedule  

L.I.W. v T.R.W., 2014 BCSC 1748

Court may “place much reliance on the findings and recommendations”  

M.M. v C.J., 2014 BCSC 6

However, assessor must not decide ultimate question or recommend orders for parenting time  

T.C. v S.C., 2013 BCPC 217

Court may draw its own conclusions from information collected by assessor  

T.C. v S.C., 2013 BCPC 217

Enforcing disclosure, s. 213

Provision intended to equip court with more tools to address wilful non- and late disclosure  

J.D.G. v J.J.V., 2013 BCSC 1274

Severity of order depends on degree of non-disclosure, reasons for non-disclosure and date when disclosure finally made 

J.D.G. v J.J.V., 2013 BCSC 1274

Court should not make anticipatory orders  

Crerar v Crerar, 2013 BCSC 2244

Fine of $500, disclosure of complex information made before hearing  

J.D.G. v J.J.V., 2013 BCSC 1274

…of $2,880 for failing to disclose basic income information, aggravated by wish to avoid child support; reduced from $4,000 because of limited financial resources  

J.C.P. v J.B., 2013 BCPC 297

…of $2,500 because of delay of 11 months and failure to take even preliminary steps toward producing financial statement  

Cully v Cully, 2013 BCSC 2457

…of $500, as disclosure made prior to hearing and respondent’s lawyer’s cause of some of delay  

Doman v Ciccozzi, 2014 BCSC 866

…of $2,000 ordered where information provided was “incomplete, false and misleading”  

MacGrotty v MacGrotty, 2014 BCSC 317

…of $500 ordered where respondent breached order with deadline  

M.L.D. v K.J.E., 2014 BCPC 221

Respondent must be given notice of intention to seek fine before a fine will be ordered  

T.M.T. v J.P.T., 2013 BCPC 352

Misuse of court process, s. 221

Order under this provision amounts to finding that respondent is vexatious litigant  

K.L.J. v E.J.G.K., 2013 BCSC 2030

Relief more limited than under Supreme Court Act s. 18 as cannot generally bar legal proceedings, just within an existing proceeding, but test is less stringent because doesn’t require proof that respondent has habitually and persistently instituted vexatious proceedings  

Dawson v Dawson, 2014 BCSC 44

Order made against grandparents interfering the litigation, “resulting in extended litigation and numerous frivolous applications to the court,” plus $2,000 fine  

M.J.S. v A.D., 2013 BCPC 230

… against party repeatedly attempting to revisit an issue, amounting to a misuse of process  

Dawson v Dawson, 2014 BCSC 44

… against both parties where litigation had lasted for four years and trial could have been completed in less than 20 days  

J.C.P. v J.B., 2013 BCPC 297

Restricting communications, s. 225

Order on court’s motion requiring parties not to speak derogatorily about each other in front of the child, not to speak about proceeding with child, to communicate about the child by text or email  

Ferguson v Ferguson, 2014 BCSC 216

Consent order restricting communication to text or email  

Hughes v Erickson, 2014 BCSC 1952

Order on court’s motion prohibiting direct communication and restricting to email on child-related subjects  

L.D.M. v R.H.M., 2014 BCPC 98

Orders respecting residence, s. 226

Although s. 226 is not linked to family violence, finding of violence would be factor in application for exclusive occupancy  

J.R.E. v 07----8 B.C. Ltd., 2013 BCSC 2038

Enforcing conduct orders, s. 228

Section only applies to previously made conduct orders, order shouldn’t be anticipatory  

K.L.K. v E.J.G.K., 2013 BCSC 2030; Crerar v Crerar, 2013 BCSC 2244

Extraordinary enforcement, s. 231

Following conclusion parenting time wrongfully withheld, order made for police apprehension in event of further withholding  

Singh v Singh, 2014 BCSC 651

After parent removing child from daycare to accommodate work schedule without consent of other parent, parent ordered not to further remove child and arrest order made in event of breach  

A.L. v K.H., 2013 BCSC 1943

Applicant given liberty to apply under s. 231 in event of future breach of orders restricting respondent’s communication with applicant’s counsel  

Dawson v Dawson, 2014 BCSC 44

No substantive case law

• Provincial Court enforcement of Supreme Court orders, s. 195
• Lawyers’ compliance with s. 8(2) duties regarding family dispute resolution processes, s. 197
• Legal capacity of children, s. 201
• Receipt of children’s evidence, s. 202
• Guardianship of treaty first nations children, ss. 208, 209
• Property disputes involving treaty first nations land, s. 210
• Orders respecting agreements, s. 214
• Orders on behalf of child, s. 220
• General enforcement provisions, s. 230

Part XIII: Transitional provisions

Parenting transition rules, s. 251

Interim Family Relations Act order addressing only access must not be read as order denying custody or guardianship where those issues had not been ruled on  

J.C.P. v J.B., 2013 BCPC 94

Order on primary residence not addressing custody or guardianship does not disturb s. 39 presumption of guardianship  

S.T.H. v R.M.G., 2013 BCPC 114

Ex parte interim order for sole custody and sole guardianship under Family Relations Act makes party child’s only guardian under Family Law Act until varied  

L.A.M.G. v C.S., 2014 BCPC 172

Order for sole custody with no reference to guardianship deprives parent without custody of status as guardian under Family Law Act  

P.A.G. v M.S., 2014 BCPC 158

Coming into force of Family Law Act not a change in circumstances justifying setting aside of agreement for sole custody 

A.J.H. v L.C.H., 2013 BCSC 900

Property transition rules, s. 252

Debts known of at the time of trial of an Family Relations Act property claim are res judicata and cannot be relitigated as a family debt by an action under the Family Law Act

G.M.W. v D.P.W., 2014 BCSC 482

This provision does not apply to persons who are not spouses under the Family Relations Act

Meservy v Field, 2013 BCSC 2378

However, unmarried spouse with action for unjust enrichment started prior to coming into force of Family Law Act must amend pleadings to claim division of property under Family Law Act for Family Law Act to apply

McKenzie v Perestrelo, 2014 BCCA 161

Spouses can agree to have Family Law Act apply to property proceedings commenced under the Family Relations Act

Asselin v Roy, 2013 BCSC 1681

A party cannot amend Family Relations Act property proceeding to claim under the Family Law Act  contrary to s. 252, without consent of other spouse

G.G. v M.A., 2013 BCSC 1834; Yucson v Yucson, 2014 BCSC 1614

Effect of transition, s. 254

Interpretation Act s. 36 on repeal and replacement of legislation inapplicable to coming into force of Family Law Act  not justifying application to vary Family Relations Act order to compliance with new terms on child support obligations of stepparents  

K.H.M. v J.M.F., 2013 BCPC 56

Other noteworthy cases

Know of any other helpful cases? Please post a comment with the name of the case and a short description of what the court had to say about the Family Law Act.