30 December 2015

Dealing with Pets after Separation

Family law is about how serious cohabiting relationships start and end, how children are cared for after separation, how the bills are paid after separation, and how the property and debts that accumulated during a relationship are split when it ends. Despite the folks who’d very much like to apply for custody of or access to their pets after separation, the law on custody and access, and guardianship and parenting arrangements, only applies to human children. In the eyes of the law, pets are personal property, like a coffee cup, a cow or a car. I’m not saying this is right, mind you, just that this is how it is; no matter how attached you might be to your pet, your pet is property. As the adjudicator in Gardiner-Simpson v Cross, a 2008 case from Nova Scotia, said:
“[4] Emotion notwithstanding, the law continues to regard animals as personal property. There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the [statutes on family law]. Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.”
The laws that apply to the ownership of pets, both before and after separation, are the same laws that apply to the ownership of all personal property. This even includes the new Family Law Act, to the extent that a pet qualifies as “family property” or “excluded property” under that law; I’ll talk about that in a bit.

I last wrote about this in January 2012, in a post called “Provincial Court Releases Decision on Pet Custody Battles” about the British Columbia case of Kitchen v MacDonald. That post continues to be widely read and has lately been the subject of an increasing number of comments lately, and it seems to me that a summary of the law on the care, control and ownership of pets following separation would be useful.

Before continuing, I’d like to first emphasize the importance of remembering that pets are property, or, to put it another way, pets are not people. If you have an issue about a pet following separation, it will probably help to make a point of mentally substituting “the toaster” for “the dog” when you’re thinking about the problem. Unplugging your emotions from problems like this can often make it easier to work your way through them. I'll take my own advice for the rest of this post.


Here are the general rules about owning and co-owning personal property.

1. In general, the person who bought the toaster owns the toaster.

There are some exceptions to this rule, like if you found the toaster wandering the streets or you bought the toaster as a gift for someone else. However, in general, if you bought it, you own it.

If you bought the toaster, you can provide evidence of the purchase, and your ownership, through a sales receipt, or a bank statement or credit card statement, showing the details of the purchase. If you don’t have paper evidence of the transaction, you may be able to demonstrate ownership by being the person:
  1. who is listed as the owner at the vet’s office; 
  2. whose name is on the city ownership licence; or, 
  3. who is identified on a kennel club registration or breeder’s certificate. 
2. In general, a person who receives a toaster as a gift owns the toaster.

Making a gift of something is one of the more common ways, along with selling or trading the property, that an owner of property can transfer ownership to someone else. Someone who buys a toaster, and then gives it to someone else, loses the right to have and use the toaster; the person to whom the toaster is given, on the other hand, becomes the owner of the toaster, and, with ownership, gains the right to have and to use the toaster.

If you received the toaster as a gift, you may be able to prove that ownership of the toaster was gifted to you by providing:
  1. letters, notes or cards that might have accompanied the gift; 
  2. evidence of what the giver said to you about the gift, like “happy birthday, I bought you this ferret;” 
  3. evidence of what the giver said to others about the gift, like “I bought Sandra a ferret for her birthday;” or, 
  4. evidence that the giver has given similar gifts in similar circumstances, like “I give all of my children ferrets for their sixteenth birthdays.” 
As you can see, proving that something was a gift is about proving the intention of the owner to make a gift. The transfer of ownership isn’t a gift without that intention!

Say your boyfriend stops caring for or feeding the toaster, stops taking it for walks and stops taking it to the vet, and say you’ve started doing all those things. Although it’s true that you’re doing all the work, it doesn’t mean he’s necessarily given the toaster to you unless he actually says, “take the toaster, it’s yours.” However, there are some exceptions to this. Read on.

3. You might be able be able claim ownership of toasters that are stray or abandoned.

The basic rule is that an owner’s rights in personal property are never lost unless the owner intends to get rid of the property. But what if the owner of a stray toaster can’t be found? What if the owner has abandoned the toaster?

I won’t say much about owning stray toasters, since this post is about property rights between couples who are separating. I’ll just say that you may be able to keep a toaster that you find, as long as you don’t know who the proper owner is and never find out who the proper owner is. If, over time, you become the person who normally cares for the toaster you might gain a right to have the toaster that is enforceable against everyone else, except the proper owner.

Now it might be possible for you to argue that the proper owner has abandoned the toaster, especially if the owner has stopped caring for or feeding the toaster, stopped taking it for walks and stopped taking it to the vet, and you’ve taken over all those chores. Arguing that your partner has abandoned the toaster can be challenging, however, and it’s up to you to prove that she’s abandoned the toaster.

Here’s how an adjudicator from Nova Scotia described the law of abandonment in the 2014 case of Chiasson v Kennedy:
“[16] … Abandonment occurs when there is ‘a giving up, a total desertion, and absolute relinquishment’ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property … abandonment involves … an intention to relinquish title, ‘that is, an indifference as to the fate of the chattel, coupled with sufficient acts of divestment’…”
And that, in a nutshell, is what you have to prove to show that your partner has abandoned her toaster.

“Chattel,” by the way, is another term for personal property.

4. If you can’t claim ownership of the toaster even though you’ve been the only one caring for it, you may be able to claim compensation for your contributions.

If you’ve wound up doing a lot of the day-to-day work associated with the toaster or paying for a lot of the toaster’s expenses, like food, vet bills and grooming costs, and you can’t find a way to claim that you own the toaster, you can ask for the next best thing: compensation for your contributions to the maintenance of the toaster. This is called an “unjust enrichment” claim.

Although we normally see unjust enrichment claims in the context of someone’s contributions to “real property,” such as houses, condominiums and cottages, I don’t see any reason why the claim couldn’t be made with respect to personal property. The idea behind claims like this is that you’ve made contributions to property owned by someone else for which you’d normally be paid in some way. There are three things you have to prove to establish unjust enrichment:
  1. the owner was enriched because of your contributions to the toaster (for example by not having to buy toaster food or pay for someone to walk the toaster); 
  2. you lost something as a result of your contributions (like the money you spent feeding the toaster or the money you could have made walking someone else’s toaster); and, 
  3. there is no legal reason for the owner to be enriched by your contributions (like a contract which required you to care for the toaster). 
If you’re successful, you’ll then have to prove the amount by which your efforts enriched the owner. Although you won’t get to keep the toaster, unless there’s no other way for the owner to pay out what he or she owes you, at least you’ll be partially repaid for the time and money you’ve spent on the toaster.

5. More than one person can own a toaster.

Finally, it’s important to know that more that one person can own a toaster, just like more than one person can own a car or a house. This might happen if both people put money into buying the toaster, if the toaster is bought using money from a joint account or if the toaster is bought using money borrowed from a joint credit card. It might also happen if the person buying the toaster meant that both people would own the toaster.

Ideally, you’d prove joint ownership with a sales slip that demonstrates joint contribution to the purchase by saying something like “received for the purchase of Sam, the four-month-old purebred toaster, $100 from Sandra and $100 from Kaitlyn.” This would create a presumption that both of the buyers own the toaster. However, sales slips rarely say anything so useful, and most buyers never think of asking for it. Absent this sort of proof, you’ll need to demonstrate that you both intended to jointly own the toaster. Just like gifts, intention is everything.

Things like sales receipts that show both names (“Sam, sold to Sandra and Kaitlyn for $200”), city licences in both names, statements from joint bank accounts and credit cards showing the purchase all tend to support the argument that both of you meant to jointly own the toaster, but none conclusively prove that this was your shared intention. You might be able to prove you had this intention through:
  1. letters, notes or cards that you might have exchanged around the time of the purchase; 
  2. evidence of what your partner said to you about the purchase (“I’m so happy we bought Sam together”); and, 
  3. evidence of what your partner said to others about the purchase (“Sandra and I bought Sam together”). 
However, it’s not always an advantage to co-own a toaster, as we’ll see in a moment.


Okay that’s the important stuff. Assuming this doesn’t help you and your ex come to an understanding, you may find yourself having to go to a mediator, an arbitrator or a judge. If you’re going to court, which can sometimes be cheaper although it’s always a lot slower, the courts you can go to to ask for orders about toasters are:

1. Small Claims Court.

This branch of the Provincial Court is able to deal with disputes about the ownership of personal property under the common law, including the law of contracts but excluding the law of trusts, and under most of the provincial legislation that deals with the ownership of personal property.

The Provincial Court can’t make orders about property under the Family Law Act, however, and if you have other issues relating to your separation you’re likely in Family Court, another branch of the Provincial Court, dealing with those issues under the Family Law Act. That said, I don’t see any particular reason why you couldn’t be in Family Court dealing with support and parenting problems at the same time you’re in Small Claims Court dealing with the toaster.

2. The Supreme Court. 

The Supreme Court can deal with all disputes about the ownership of personal property, including property that may be family property or excluded property under the Family Law Act.


Alright, so let’s say that you’re in stuck court. That’s too bad, but there you go. The sorts of orders you can and can’t ask the court to make about toasters include these.

Remember that because toasters are personal property, the best interests of the toaster at issue aren’t relevant. Nor is who loves the toaster more or, usually, who would provide the toaster with a better home. What counts is ownership. As the adjudicator in Hawes v Redmond, a 2013 decision from Nova Scotia, put it:
“[26] I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point. This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle.”
Bicycle; toaster. Whatever. 

1. You can’t ask for custody of the toaster.

“Custody” is a Divorce Act term that applies to children. Human children.

What you’re probably looking for is an order that gives you the right to have the toaster that’s enforceable against your ex; more on this a bit later. You might also be asking the court to declare that you’re the owner of the toaster.

2. You can ask the court to make a declaration about who owns the toaster.

If you do this, you're asking the court to decide who the owner of the toaster is. This is helpful when there are doubts about who owns the toaster. Besides, being the owner of the toaster usually lets you say where the toaster lives… like, for example, with you.

If you lose, however, the court will most likely declare that your ex owns the toaster. The court isn’t likely to not make a declaration about who owns the toaster once the issue has been brought up.

3. You can’t ask for access to the toaster.

“Access” is also a Divorce Act term that only applies to human children.

The closest I can put the idea of access into an order about property is an order that would give each person the right to possess the toaster on a regular, alternating basis. Although there’s nothing stopping anyone from agreeing to that in a contract like a separation agreement, and the court would probably make an order like that if everyone agreed to it, the idea of a right to the periodic possession of property doesn’t fit well with the law on personal property or the general principle that court orders should resolve, or at least decrease, the conflict between litigants.

First off, if you’re not the owner of the toaster you don’t have the right to have the toaster, on a periodic basis or otherwise, unless you’ve got a contract with the owner. Second, if you’re the owner and you don’t have a contract requiring you to let someone have the toaster from time to time, there’s nothing I can imagine that could oblige you to do so.

Third, if the two of you both own the toaster and can’t agree to share it, the court won’t make you share it. Here’s what the court said about it in C.S. v D.S., a 2005 case out of Newfoundland and Labrador:
“[44] ... The dog is a matrimonial asset but it is, without being facetious, indivisible. ...”
Accordingly, the court’s options are these:
  1. decide which of you will be entitled to own and keep the toaster, and possibly require the person keeping the toaster to pay compensation to the person who doesn’t get to keep the toaster; or, 
  2. make you sell the toaster, and then divide the sale proceeds between you. 
The compensation potentially payable in the first case would likely be based on the current fair market value of the toaster – what a neutral stranger would pay to buy the toaster, at its current age and in its current health, from you.

4. You can ask the court to make an order about who should possess the toaster.

Owning something is sometimes different than having something. Landlords, for example, own the apartments they rent out but don’t have the right to possess their apartment; the right to have the apartment is what they sell to their renters. Orders for the possession of things are useful because they say that you have the right to have those things, whether you own them or not.

If you’re asking the court for a decision about who owns the toaster, you could ask for an order for the possession of the toaster at the same time and kill two birds with one stone. This will be especially useful if you’re the owner and your ex is keeping the toaster from you.

5. You can’t ask for an order that you jointly own the toaster or continue to jointly own the toaster.

Although you can make an agreement that you’d continue to jointly own the toaster, and the court would probably make an order that you jointly own the toaster with your agreement, the court is not likely to make an order that you jointly own the toaster over someone’s objection. This would create, or perpetuate, pointless conflict. If you can’t agree that both of you will continue to own the toaster together, the court’s options are to:
  1. decide which of you will be entitled to own and keep the toaster, and possibly require the person keeping the toaster to pay compensation to the person who doesn’t get to keep the toaster; or, 
  2. make you sell the toaster, and then divide the sale proceeds between you. 
Again, the compensation potentially payable in the first case would likely be based on the current fair market value of the toaster.

6. You can ask that you be compensated for the money you spent feeding and taking care of the toaster.

If you don’t own the toaster, you can ask the court to make a declaration that the owner of the toaster was unjustly enriched by your contributions to the care and maintenance of the toaster. If the court decides the owner was unjustly enriched, and you can somehow prove what you spent on the toaster and what your non-monetary contributions were worth, the court may then make an order that your be compensated for your contributions. Non-monetary contributions might include taking the toaster for walks, bathing it, grooming it and so on.

Proof of your spending might include grocery bills and receipts from the vet, but few people take the trouble to keep all of these receipts and you’ll likely be out some money. It will be difficult to establish the value of your non-monetary contributions, but you can get some idea by looking at what commercial services charge for things like toaster-walking, grooming and so on.

7. You can ask that you be compensated for the money you put into buying the toaster.

If you’re not the toaster’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the toaster, you can ask to be repaid for what you paid toward its purchase.

This isn’t an unreasonable order to ask for, but I'd imagine that most toasters are depreciating assets. The amount you’d pay for a very young toaster with years of life ahead of it is not what you’d pay for a middle-aged or elderly toaster. If you’re arguing about a four-year-old toaster, should the person keeping it be obliged to give you back your original investment or a proportion of that investment based on the toaster’s current value? The current value might be fairest, especially if you also enjoyed the toaster.

8. You can ask for an order that the toaster be sold, and that the money from the sale be split between you.

This is the scorched-earth option. It’s saying “fine, if I can’t have the toaster, you can’t either.” It reflects your strong emotional bond to the toaster and how upset you are at not being able to keep it, but also disrespects your ex’s emotional bond and attachment to the toaster. It also comes across as rather petty.

The adjudicator in Gardiner-Simpson summarized the problem with this approach as follows:
“[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the dog to an outsider would only double the pain.”
I can’t imagine too many judges making this sort of order. In fact, I can really only imagine this order being made as a way of signalling the court’s frustration with the behaviour of everyone involved.


Under the Family Law Act, certain property is excluded from division between married and unmarried spouses, namely property brought into the relationship and certain kinds of property received during the relationship, namely gifts, inheritances and personal court awards. The property spouses share is property brought during the relationship as well as the increase in value of excluded property.

1. Toasters as excluded property.

In most cases, a toaster that’s brought into a relationship will be excluded from division between the spouses and remain the sole property of the owner, as will a toaster that’s inherited by a spouse or a toaster that’s given to one of the spouses during their relationship. Toasters are, however, assets with depreciating value, which means that it most cases there won’t be any increase in the value of a toaster that the owner must share with the other spouse.

Curiously, spouses are also obliged to share family debt, and "family debt" is defined as including “all financial obligations” incurred by a spouse during their relationship. As a result of this definition, debts incurred with respect to excluded property, like a toaster’s unpaid vet bills, might qualify as shared debt that both spouses are responsible for.

2. Toasters as family property.

Toasters bought during a relationship will qualify as family property, as long as the purchases aren’t made using excluded property. Toasters that are family property are subject to “division” between spouses regardless of which spouse bought them.
In family law, family property is usually divided so that each spouse is left with a roughly equal share of the family property (“you keep the car, and I’ll keep the ride-on mower and the Lionel Ritchie boxed CD set”), sold and the proceeds divided between the spouses (“we’ll sell the house, use the sale money to pay out the mortgage and our credit cards, and we’ll split what’s left over between us”), or some combination of the two (“I’ll keep the Lionel Ritchie set, and you keep more of the money from the sale of the house in exchange”). Since selling the toaster isn’t really practical, this means that one of the spouses is going to wind up keeping the toaster and compensating the other for the value of his or her interest in the toaster.

Now, just because toasters may qualify as family property and can be divided under the Family Law Act doesn’t mean they should be divided under the act. In Ireland v Ireland, a 2010 case from Saskatchewan, the parties’ lawyers agreed that a toaster was family property and divisible under the family law legislation, however the court commented that:
“[9] It is an unacceptable waste of these parties’ financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one-day trial involving three witnesses, including an expert called by one of the parties. It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources. 
“[10] Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the court should not be engaged with interim applications or the trial of an issue such as this.”
Really, the judge’s observation in this case goes beyond dividing toasters by application under the family law legislation; the point that arguing about such claims in court is a waste of litigants’ financial resources seems to me to apply to all court claims involving toasters. As the court said in Warnica v Gering, a 2004 Ontario case:
“[19] … Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised [as property orders] or otherwise. …”

Here’s a summary of some of the Canadian court decisions on pet custody claims made in the last decade or so. There are very few of them.

1. It was a gift!

In the Hawes v Redmond decision, no one had any documents demonstrating ownership. The dog in wasn’t registered with the city or a kennel club, and the vet bills were paid by whomever brought the dog in. Redmond claimed that Hawes bought the dog as a gift for her, Hawes claimed that the dog was bought as a gift for the family as a whole.
“[23] In the case here, I am satisfied that Dr. Hawes intended to make a gift of [the dog] to Ms. Redmond, at the important time in the analysis - namely at the beginning. I have no doubt that she knew that the dog would be a welcome addition to this very dog-focused household, but she appears to have been principally motivated by a desire to strengthen or salvage her relationship with Ms. Redmond. She used the term gift and connected it to Ms. Redmond’s birthday. Ms. Redmond clearly accepted the gift, and in her Facebook posts presented the dog to her friends as hers, in the singular sense. 
“[24] I find it significant that when Ms. Redmond went to visit her mother, she brought the two dogs that she regarded as hers. She did not bring four dogs (unmanageable though that might have been). All of this clearly points to her belief that the dog had been gifted to her by Dr. Hawes, a belief that Dr. Hawes never sought to deny until the time of separation. 
“[25] On the other side of the equation, there is very little evidence that would negate the gift. The fact that much of the care fell to her, and that the dog would become bonded to Dr. Hawes and her children, is equivocal, as I have noted. This was a function of family dynamics.”
This case shows how important the buyer’s intentions are, in particular the buyer’s intentions when the property purchased, and how people’s beliefs can be inferred from their behaviour.

2. It wasn’t a gift!

A similar problem arose in the Gardiner-Simpson v Cross case. Cross bought the dog and registered it with the city and the vet. Gardiner-Simpson said that Cross bought the dog as a Christmas present for her. Cross said that if the dog was a gift, if was a gift to the family. Either way, Gardiner-Simpson and Cross shared responsibility for the dog while they lived together, and neither refused to participate in the care of the dog on the basis that it wasn’t his or hers.
“[32] The concept of a gift is legally more complex and problematic than most people may realize. The law is suspicious of alleged gifts, especially under circumstances where the donor is no longer alive or otherwise able to corroborate the intention to make a gift. Perhaps sadly, it is more consistent with human nature to find people acting in their own interest and not being motivated by pure generosity. 
“[33] This is not a matter where the alleged donor is unavailable to speak to his intention, so the matter becomes more of a straightforward question of fact, namely: was there a clear intention on the part of the alleged donor … to vest the property interest in [the dog] in [Gardiner-Simpson]? 
“[34] I am unable to conclude on the evidence before me that there was any intention on the part of the [Cross] to make a gift to [Gardiner-Simpson] and vest the property right in her alone. If it was a gift at all, it was a gift to them both. I do not give any real weight to statements allegedly made to family members about [the dog] being the [Cross’] Christmas present to the [Gardiner-Simpson]. I do not accept that that was the true intention. In substance the purchase of the dog was an acquisition for their joint enjoyment. 
“[35] [Cross] purchased the dog in his own name. All of the documents are consistent with that. The dog’s vet records throughout continued to name the [Cross] as her owner. The fact that [Cross] made payments on the credit card does not carry any weight with me, because I accept that this was just a way of splitting the bills equitably. 
“[36] The only supportable conclusion that I can reach is that the ownership interest in the dog was a joint one. Upon her acquisition, [the dog] became the property of both [parties] jointly.”
This case shows that a person’s intention to make a gift must be clear and unequivocal before the buyer will lose ownership of the property. However, in this case, the circumstances also didn’t support the idea that the buyer was the sole owner of the property. In case you’re curious, the court didn’t have to decide who had the better claim to the dog to resolve the joint ownership problem, as the parties had a separation agreement that resolved the issue.

In Kitchen v MacDonald, the issue was whether MacDonald’s father made a gift of a dog to both parties or to just MacDonald. MacDonald was involved in selecting the dog and was solely responsible for taking the dog to the vet, paying the vet bills and registering the dog with the city. However, MacDonald also made sure that Kitchen spent time with the dog and other evidence suggested an attitude that the dog belonged to the two of them.
“[6] … [MacDonald] admits that the dog did spend time with Mr. Kitchen. In fact, she corrected him if he referred to the dog as his, and stopped contact when he posted a photo of ‘his’ dog on the internet. He worked nearby and was willing from time to time to come and take the dog, some times for a few nights at a time. … At trial, Mr. Kitchen acknowledged that he did not play a role in the selection or purchase of the dog. He also acknowledged, although he said that he purchased dog food and other items for use at his home, he did not otherwise contribute to the upkeep of the dog. He believed the dog was his because she called him [the dog’s] daddy, he took care of it often and they treated it as theirs when they were in a relationship. 
“[7] There is uncontroverted evidence that Ms. MacDonald referred to Mr. Kitchen as the dog’s ‘daddy’. There is an undated letter on file as well reporting to be from [the dog] to ‘my daddy’, apparently following a break-up where Ms. MacDonald writes on behalf of the dog that she is sorry she cannot make them a family. It suggests ways that he can come and see the dog while she is out of the house at work. It concludes by saying ‘I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is. She wants us to both be happy.’ There were also gifts and cards over the years addressed from the dog to his ‘daddy’. Ms. MacDonald also encouraged Mr. Kitchen continuing to look after the dog during the day. She encouraged the visits and the exercise and the companionship. She was receiving by-law tickets with respect to the barking and it was obviously a relief to her to have someone entertaining the dog to help address this problem. By anthropomorphizing this dog, Ms. MacDonald led Mr. Kitchen to, and Mr. Kitchen allowed himself to be possessed of an expectation that, the dog was ‘the child’ of both of them. This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog. 
“[8] … Mr. Kitchen was able to enjoy the benefits of the dog’s companionship without the burdens of its ownership. He was not asked to nor did he expect to contribute to the costs of the dog. In fact, it was her parents who assisted her when she required financial assistance for the care and keeping of the dog. This alone would not resolve the issue of ownership. However, all of the factors in the mix conclusively determine that Deanna MacDonald is the sole owner of the border collie. Richard Kitchen’s interest is merely a sentimental one. That does not bestow any right of possession on him.”
The importance of this case is that emotional interests do not create legal interests. In order for Kitchen to be a joint owner of the dog, MacDonald’s father would have had to have intended to make a gift of the dog to them both.

In Warnica v Gering, the dog in question was found not to have been a gift to Warnica on the basis that Gering bought the dog and the dog had always lived with Gering.
“[26] They do not contest that the dog, a mixed breed, was purchased from the local pound in 1996 for $100. They do not contest that [Gering] purchased the dog. They do not contest that the dog always lived with [Gering], except for a period of a few months after the parties ceased to have a relationship, when they shared possession back and forth. 
“[27] It would seem odd, if the dog was purchased as a gift for [Warnica], that it always lived with [Gering] prior to the termination of the parties’ relationship. Assuming a ‘he said, she said’ situation otherwise, that is the best evidence on the gift allegation and it stands against [Warnica]. 
“[28] It would appear as if [Warnica’s] involvement with the dog was totally dependent upon his relationship with [Gering]. [Warnica] may have spent money for such things as dog food and the like and he may have spent time caring for the dog. I do not consider that to be relevant to who owns the dog.”
Note that Warnica’s contributions to the costs of maintaining the dog didn’t bear on the ownership issue.

3. It’s family property. Who should keep it?

In the Ireland v Ireland case, the parties agreed the dog was family property, as a result of which both of them were entitled to the keep the dog. The question the court had to decide was which of them would be entitled to possess the dog. Both were involved in the dog’s care, both “derived companionship” from the dog and both exercised with the dog.
“[14] In this case, the court awards ownership and possession of [the dog] to Diane for, among other reasons, the following:
1) The evidence convinces me that it was primarily on Diane’s initiative that the parties acquired this pet and that she was principally involved in its early training and care; 
2) Although both parties have become very attached to their pet and share activities with her in their present circumstances, [the dog’s] companionship is more important to Diane than it is to David; 
3) David has his current partner who owns two dogs of the same breed as [the dog]. Although David does not have the same attachment to them, nevertheless he has the benefit of their presence and companionship including the one with whom he runs; 
4) Diane expects to retire from her profession as a nursing manager at the Moose Jaw hospital. She plans to spend extended periods of time in the winter in a “dog friendly” southern United States location. A continuation of the “shared possession” would be unworkable in these circumstances; 
5) The parties have had one or two difficulties during the exchange of [the dog’s] possession which prompted, on one occasion, a threat to call the police. The parties deserve to be spared these interactions, the potential for breaches of the peace and further unacceptable reliance upon public resources to settle disputes between them should they arise.”
Diane was required to pay $350 to David, being half of the dog’s purchase price.

This case suggests some of the factors the court might consider in deciding which spouse should be entitled to keep a family pet, including: the degree of attachment between the spouses and the pet; and, the availability to each spouse of similar pets.


I don't know that there's a particularly meaningful way to wrap up this post, except to emphasize that, in court, pets are property and will be dealt with according to the same laws that apply to all other kinds of personal property. I acknowledge, of course, that the emotional attachments people develop toward their pets makes arguing about Fluffy wholly different than arguing about Aunt Mabel's silver spoon collection. It's exactly this emotional attachment which makes the law on personal property something that's best avoided if at all possible.

If you have a disagreement about the care of your pets after separation, negotiation, mediation and collaborative settlement processes are all better ways of resolving your dispute than court. Although the law is always relevant to how people manage a legal dispute, these out-of-court processes allow you to take into account all of the intangible values, interests and emotions that go into a relationship with a pet in crafting a settlement of your dispute.

The comments to my post "Provincial Court Releases Decision on Pet Custody Battles" demonstrate the huge range of legal problems that couples with pets can have after their romantic relationships have come to an end. If you can't resolve things by talking to each other, please consider hiring a professional to help you find a solution without going to court. The cold and impersonal rules about personal property that apply perfectly well to watches, wheelbarrows and winches aren't likely to acceptably address disputes about pets.

21 October 2015

BCAMI Family Law Arbitrator Training

The British Columbia Arbitration and Mediation Institute is offering training in the arbitration of family law disputes. This five-day, forty-hour course is being run by noted arbitrator Glen Bell, who has long provided the BCAMI's commercial arbitration training, and includes presentations from a number of prominent British Columbia family law lawyers including myself and:
This course will be useful for any lawyer wishing to practice as a family law arbitrator.

I have personally enjoyed arbitrating family law disputes. I appreciate the flexibility the process offers about the style and nature of hearing and the manner in which evidence and arguments are presented, not to mention the intrinsic privacy arbitration provides. Arbitration is a high value alternative to litigation when a family law dispute cannot be settled, and I recommend it to anyone who wishes to keep his or her dirty laundry out of the public spotlight and seeks a speedy resolution.
Dates: 30 November to 4 December 2015 
Place: People's Law School, 900 Howe Street in Vancouver 
Cost: $1,890.00
Note that there may be prerequisites which must be met by those wishing to take the course. This is mentioned on the registration form, but I've been unable to find any details on the BCAMI's website.

19 October 2015

A Different Approach to Parental Alienation Cases: It's Time to Try Something New

Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that just might encourage negotiation and curb the usual headlong rush to trial.

Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional response to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

Rejected parents are generally struggling with the achingly painful loss of a relationship with their children at the same time as they're dealing with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

Favoured parents, on the other hand, seem to react to allegations of alienation with the same degree of strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury lawsuits or shareholders’ grievances. The parties involved in family law proceedings once (usually) trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede even the partial accuracy of those claims.

In a previous post on Slaw, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

Of course, the even more fundamental characteristic shared by all children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be revitalized and enhanced? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of the child's attachment disruption?

There are, I suggest, a number of benefits to be gained from such an approach.

Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s personal problem, and, in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents, as well as rejected parents, to raise the breakdown in the parent-child relationship as an issue that must be resolved to promote the child’s wellbeing in the legal proceedings.

Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few situations that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

It is important to recognize that this approach does not prevent the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children, without the need to allege alienation or counter with allegations of estrangement.

It is also possible to pursue the other remedies typically associated with parental alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour, or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in primary residence or severely truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation allegations and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

A version of this post was originally published in the online legal news magazine Slaw on 16 October 2015.

07 October 2015

Fantastic Elder Law Conference Coming to Vancouver in November: Save the Date!

The Continuing Legal Education Society of British Columbia, Canada's leading providing of continuing professional training for lawyers, and the Canadian Centre for Elder Law are hosting the Canadian Elder Law Conference on 12 and 13 November in 2015. The conference is open to anyone with an interest in the legal and other issues affecting Canada's elders, but will be of most interest to lawyers, financial planners and mental health professionals.

The conference is extremely timely, given Statistics Canada's recent report showing that there are now more Canadians who are older than 65 than those who are under 15. In fact, the baby boomers, the oldest of whom turned 65 in 2011, make up a greater share of the population than any other age group.

The boomers are also the first generation for whom divorce carried only a marginal stigma, as a result of the introduction of the original Divorce Act in 1968. But not only are more older persons divorced or separated than ever before, more are forming new married or unmarried spousal relationships. This poses special challenges for the legal and mental health professionals involved in family breakdown, as we can expect, in the very near future, to be helping more clients with significant physical and mental illnesses, more living on fixed incomes and in poverty, and more requiring institutional or assisted home care. Cases involving persons of retirement age often raise special concerns and competing generational interests about the distribution of income and assets following separation; concerns can also arise about the tension between the interests of employed persons wishing to retire and dependent persons unable to survive without spousal support. Dealing with later-in-life separation also demands a special sensitivity to the needs of women, who have lower incomes than men in general, and are disproportionately affected by separation and divorce.

I've written about the economic consequences of separation and divorce later in life, the federal benefits available to older Canadians and the interplay of spousal support and retirement in a paper for the National Judicial Institute, which you can download (PDF) from the website of the Canadian Research Institute for Law and the Family.

This conference is a must for anyone practicing family law or involved in family breakdown from a financial or therapeutic perspective. The full details, including the agenda, are available on CLEBC's website and CCEL's website, but here's the stuff you need to know.
Place: Pan Pacific Hotel, Vancouver BC 
Date: 12 and 13 November 2015, 9:00 am to 4:30pm both days 
CPD Credits: 12.5 hours, including 2 hours on ethics 
Pricing: Early bird registration of $1,005 ($585 for students) ends 15 October 2015. The registration fee thereafter is $1,110 ($585 students), or $990 if you want to attend by webinar.
Keynote speakers include:
  • Barb MacLean, Chair of the British Columbia Council to Reduce Elder Abuse
  • Isobel Mackenzie, British Columbia's Seniors Advocate
  • Dr. Andrew Wister, Chair of the National Seniors Council
Panelists presenting at the conference include myself and: 
  • Hon. Marion Allan, Clark Wilson
  • Barbara Buchanan, Law Society of British Columbia
  • Deidre Herbert, McLellan Herbert
  • Anna Laing, Fasken Martineau
  • Andrew MacKay, Alexander, Holburn, Beaudin and Lang
  • Catherine Romanko, British Columbia Public Guardian and Trustee
  • Kimberly Whaley, Whaley Estate Litigation
  • Geoffrey White, Geoffrey W. White Law Corporation
The topics to be addressed include:
  • Advance health care planning
  • Whether a national power of attorney registry would help reduce elder financial abuse
  • Update on guardianship law in British Columbia
  • Reporting and responding to suspected elder abuse
  • Physician assisted suicide and health care decision-making
  • Later-in-life separation and divorce
  • Dementia and client competency
  • Class action litigation in elder and estate law
Save these dates and head on over to CLEBC's website to register now. Space is limited.

29 September 2015

Great New Parenting Plan Resource from the American Academy of Matrimonial Lawyers

The American Academy of Matrimonial Lawyers, a group that promotes excellence in the practice of family law, has just published a wonderful new resource on drafting parenting plans.

Child Centered Residential Guidelines is a booklet written by noted psychologist Robin Deutsch, past president of the Association of Family and Conciliation Courts and Director of the Center of Excellence for Children, Families and the Law at William James College, formerly the Massachusetts School of Professional Psychology. Child Centred Residential Guidelines is written in accessible language, offers useful tips and considerations for parenting after separation, and provides:
  • model parenting plans for children of different ages;
  • tips for planning for holidays and vacations; and,
  • guidance on developing parenting plans when a child is being breastfed, a child has special needs, domestic violence or substance abuse is an issue, or a parent is in jail.
The free resource includes sample calendars mapping out the parenting plans it covers.

In its press release, the AAML says that the booklet encourages parents to place the interests of children first and intends to "make the divorce process as focused on the needs of the children as possible," featuring "crucial advice from experts, recommended time schedules that spouses can adapt, and practical suggestions for arriving at a cooperative plan for the entire family." The AAML is to be thanked for developing such a useful resource.

22 September 2015

Parents Who Separate Before Their Child's Birth: Who's a Guardian? Anyone? Anyone at All?

I had a very interesting chat with a colleague yesterday about a hypothetical situation in which a heterosexual cohabiting couple, who are about to have a baby, separate before the baby is born; our conversation centred on who could obtain standing as the unborn child's guardian before moving out. The discussion was very interesting and provided a pretty concrete illustration of a central problem with the language of the Family Law Act on who's a guardian and who isn't, and I thought I'd share what we were talking about.

First off, here are the relevant bits of s. 39:
(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. 
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; 
(c) the parent regularly cares for the child.
This section is really important. According to the provincial government's document, The Family Law Act Explained, this section means that "with few exceptions, the parents of a child who reside with the child are automatically their guardians and do not lose these responsibilities if they separate." The document continues:
  • This section establishes the starting position that parents who live with their child are guardians. This is different from the general rule under the Family Relations Act, which provided that when parents separate, the parent with whom the child usually resided has, by operation of law, sole custody and guardianship of the person of the child. 
  • The change emphasizes that a parent’s responsibility towards their child does not change only because the parents have separated. If the parent was a guardian before separation, the parent remains a guardian after separation, unless the parents make an agreement, or the court orders that the parent is not a guardian of the child.
  • This section clarifies that a parent who has never lived with a child is not that child’s guardian. There are three exceptions:
  • where the parent is an additional parent under section 30 of the Act, which allows for three parents in limited assisted reproduction circumstances. This is important because these three parents may never have had the intention to live together but did all intend to be the child’s parents and guardians;
  • where the person is a parent, they may become a guardian by agreement. This is the only circumstance in which a person may become a guardian by agreement under the Act; and 
  • where a parent regularly cares for their child but does not live with the child. This may occur where a child is born in a short relationship where the parents did not live together, but both parents have been involved in the child’s life.
What government meant to do, in other words, is create a default setting for guardianship in which parents who live with their children are the children's guardians during their relationship and after separation. However, as I've said in previous papers and commentaries, the problem with s. 39(1) is that it defines guardianship according to the parents' relationship with each other, not their relationships with their child. A plain reading of s. 39 has a number of important consequences, especially if you make the assumption that you are not a "parent," as the term is used in this section, until the child is born.

1. Parents who live together at the time of their child's birth are guardians, even if they separate hours or days later. This, I hope, is what you'd expect. It's plainly the result contemplated by the Family Law Act.

2. Parents who aren't living together when their child is born but later move in together, even months or years down the road, will be guardians.  All the act requires is that the parents live together. Nothing requires them to be living together when the child is born or within a certain period of time from the child's birth.

3. People who live together but separate before the child is born are not guardians, even if they separate hours or days before the birth. I'm assuming that you are not the parent of a child until the child is born. If that's the case then the parties did not cohabit while they were "parents" and thus aren't guardians.

4. People who live together, but never live with the child, are guardians. Cohabiting parents may not live with their child if, for example, they agree to give the child up at birth or the child protection agency apprehends the child at birth. They nonetheless would qualify as guardians under s. 39(1) as they are "parents" and are living together.

5. Parents who never lived together are not guardians, including the parent who has always been the child's primary caregiver. This is the least expected result of s. 39(1). We're comfortable, I expect, with the idea that a parent who never lived with the child isn't a guardian of the child, however s. 39(1) also catches the parent who has alway lived with and cared for the child. Nothing in s. 39 gives that parent standing as a guardian, because she never lived with the other parent and actually resides with the child, contrary to the requirements of s. 39(3). This is really the unexpected problem of s. 39(1).

I'm not aware of any case that has yet noticed this problem with s. 39(1), however it's bound to come up at some point, and the hypothetical scenario my colleague and I were discussing is exactly the sort of scenario in which the problem would be most acutely realized.

Let me recap. Mum and dad are are living together but separate before the child is born. Dad understands that the child, when born, will stay with mum, but wants to remain involved in the child's life and very much wants to have some input into making decisions about the child. As a result, it's important that he be a guardian of the child, and he'd like to find a way to guarantee this status before they separate.

We understand that dad won't be the child's guardian if he moves out before the child is born, as he and mum won't have lived together while they are "parents." This point that is underscored by the introductory line of s. 39(3) which says, clearly, that a parent who never lived with a child is not the child's guardian.

So we turn to s. 39(3)(b) which lets parents make an agreement saying that dad, who never lived with the child, is a guardian. This, of course, is assuming that such an agreement can be made before the child's birth, which frankly isn't at all clear: can someone who is not yet a "parent" make an agreement about a fetus which is not yet born and is thus not yet a "child" under s. 39(3)(b)? However, assuming that an agreement about the guardianship of an unborn child can be made, the next problem is that such agreements must be made between a "parent" and all of the child's "guardians," and even after the child's birth there will be no one qualifying as "guardian" with whom the agreement could be made.

What, then is dad to do? Or mum, for that matter? Here are some options.

1. Dad and mum could do nothing and proceed as if they are both guardians. This will work as long as the parents get along with each other. Teachers, doctors, police and the other important people likely to be involved in the child's life are likely to assume that the parents are guardians, and treat them accordingly. After all, none of these people are in a position to know whether the requirements of s. 39(1) have been met or not. However, if the relationship between the parents deteriorates, there's nothing here to protect either parent's interests. If I were dad, I wouldn't be comfortable that this would protect my right to be involved in the child's life.

2. Dad and mum could sign an agreement under s. 39(3)(b) in which they agree that dad will be a guardian of the child. This would probably also do, but only as long as everyone plays nice. If things go sideways, I doubt that the agreement would be enforceable as it wasn't made with a guardian and a key condition of s. 39(3)(b) was therefore not met. If I were dad, I wouldn't be comfortable that this would protect my right to be involved in the child's life.

3. Mum could apply to be appointed as guardians of the child under s. 51(1)(a), and dad and mum could then make an agreement under s. 39(3)(b). This will do it for sure, however: guardians can't be appointed by consent, and the court will still have to consider whether it's in the best interests of the child for the appointment to be made; mum will have to fill out the cumbersome affidavit the Rules of Court require under s. 51(2), and get the criminal records check and child protection records check the affidavit requires; and, mum will have to give notice of the application to the people listed in s. 52(1). If I were dad, I'd need to be completely confident that mum would go through with the plan to make the agreement appointing me as guardian, or I'd worry that my right to be involved in the child's life will not be protected.

4. Dad and mum could both apply to be appointed as guardians of the child under s. 51(1)(a). This will do it for sure, however: guardians can't be appointed by consent; both parents will have to fill out the special affidavit, complete the required records checks and give the required notice; and, both risk the court concluding that the proposed appointments are not in the child's interests. This is a pretty good solution, but if the relationship between the parents breaks down before the application is heard, I can imagine a pretty ugly fight ensuing about who should and shouldn't be a guardian.

5. Wait until the child is born and then "regularly care" for the child, so as to qualify as a guardian under s. 39(3)(c). This sounds pretty good, but has some serious problems. First, it's not clear what "regular care" means, and if mum doesn't agree that the care has been regular, an application to court to decide the issue will be necessary. Second, it assumes that mum isn't planning on moving sufficiently far away that "regular care" will be impossible, and it assumes that the parents will get along well enough for the dad to establish a pattern of "regular care." If I were the dad, I wouldn't necessarily be confident that mum and I would get along well enough for me to establish "regular care" of the child and that mum wouldn't contest my claim to be a guardian.

I think I may have a solution, or at least a partial solution. Section 50, the section immediately preceding the sections about the appointment of people as ordinary guardians by court order, as standby guardians and as testamentary guardians, says this:
A person cannot become a child's guardian by agreement except
(a) if the person is the child's parent,
This is an odd section, as it seems to only confirm what s. 39(3) says and that, apart from s. 39, the only way people can become guardians is if they are appointed by court order or are named as standby guardians or testamentary guardians.

Interestingly, s. 50(a) doesn't say "except if the person is the child's parent, and the agreement is made pursuant to s. 39(3)(b)," which is where the solution comes in. Under this section, the only requirement to become a guardian by agreement is that you are a parent. Although the question about whether a person is the parent of a child prior to the child's birth is left dangling, the section doesn't require that some or all of the people making the agreement be guardians, which might let the mum and dad make an agreement that, upon the birth of their child, they will both be guardians of the child, thus circumventing the hullaballoo s. 51 requires.

This might be the ideal way to solve the dilemma of establishing guardianship among non-cohabiting parents, putting aside the issues of when a person becomes a "parent" and whether people can make an agreement in anticipation of eventually qualifying as parents. It's cheap, it doesn't require an application to court, it doesn't demand the time and cost involved in getting records checks and giving notice, it avoids the risk that the court will dismiss the application, and it allows people to resolve a personal issue privately.

At some point, however, a court will be asked to resolve the tension between ss. 39(3)(b) and 50(a). The court might conclude that the the sections are contradictory and thus offer a choice of two, non-exclusive processes for the appointment of guardians. Or, the court might conclude that the sections are not contradictory and that s. 39(3)(b) serves to add the additional requirement to s. 50(a) that such agreements must involve at least one person who already has standing as the guardian of the child.

I'll leave this to someone else to figure out.

18 September 2015

"Young Children Can't Be Home Alone, BC Judge Rules" ...No, Actually, He Doesn't

The Vancouver Sun published an article yesterday under the headline above. The headline was inaccurate and misleading, and so was the article, which began saying "a BC Supreme Court judge has ruled that it is not OK to leave an eight-year-old child alone at home, even for two hours."

Today the headline in the electronic version of the story reads "Judge upholds interim order that children can't be left home alone," and that first sentence has been changed. This is a little better, as the judge most certainly was not issuing a general pronouncement about eight-year-olds. However, the case the Sun was talking about, B.R. v K.K., reveals some interesting nuances of the child protection legislation in British Columbia ...and the importance of taking news stories about legal issues with a grain of salt.

Bad Headline

Better Headline

Let me explain about what happened in B.R., what the Supreme Court judge actually decided and what the decision actually means for British Columbians.

Mum and dad have two children and, at some point, separate. Sometime later, the Ministry for Children and Family Development, the folks that manage child protection in the province, comes to learn that mum leaves her eight-year-old son alone from after school until she gets home from work at 5:00pm. A social worker in the employ of the Ministry is dispatched to investigate.

The social worker asks mum to agree to a "safety plan." Mum refuses, as she is entitled to do, but is nonetheless a huge red flag to Ministry workers. Mum then refuses to allow the social worker to speak to her son, as she is entitled to do, but is also a red flag to Ministry workers. The social worker files a Form F Report with the Provincial Court, which you can find in the schedules to the Child, Family and Community Service Regulation, containing the social worker's statement that the child is, or is likely to be, at risk of harm.

The filing of a Form F triggers something called a "presentation hearing" under the Child, Family and Community Service Act, the legislation that gives the Ministry its child protection authority. Court proceedings on child protection matters are a two-stage affair. The presentation hearing is the first stage. The purpose of the hearing is to have the court look at what the Ministry is doing or proposes to do right away, and give it the thumb's up. The second stage, the protection hearing, is where the court actually hears evidence and decides whether the child is actually at risk.

To be clear, presentation hearings are not full trials and don't critically enquire into the facts of a case. They merely confirm that the Ministry has some evidence which, if true, could support the conclusion that the child in question is in need of protection, and thus that the Ministry is acting reasonably in taking the actions it has taken or proposes to take. Think of it like this. In criminal matters, the burden of proof on the government is to prove, beyond a reasonable doubt, that the accused person committed the crime. That's like proving 98% of a case. The burden of proof on the government at presentation hearings is only to show that it has a reasonable suspicion, and that's like having to prove 2% of a case. 

In any event, at the presentation hearing, with its very low burden of proof, the social work testified that, in her view, children who are eight years old don't have the mental capacity to be left alone and that in fact children who are under the age of ten cannot be safely left unsupervised. The judge also received unsworn evidence supporting this view in the form of "articles and documents" supplied by the lawyer for the government.

The Provincial Court judge hearing the case took the social worker's evidence very seriously, partly because of another decision, Re N.K., in which the court said that, at presentation hearings,
"[16] ... I am not required, nor is it appropriate, that I go behind the statements of fact contained in the Report to Court of the social worker. The court must, and the legislation requires, that great deference be given to the social workers who complete these reports. ..."
This decision kind of tied the judge's hands in the matter, and the judge made an order that the mum must ensure that the two children "will be under the care and supervision of a responsible adult at all times and not be left alone to care for themselves."

Mum appealed the Provincial Court decision, saying that the Provincial Court judge shouldn't have paid attention to the social worker's broad statement that no child under the age of ten should be left unsupervised. That's a pretty reasonable position to take, in my view. First, there is no law, in either the Criminal Code or the Child, Family and Community Service Act, that says "children under the age of ten can't be left alone." Second, it seems to me that the reasonableness of a parent's decision, because it is a parent's decision, to leave a child alone probably depends on
  1. the child's age,
  2. the child's maturity and stage of development, and
  3. the place where the child is being left alone,
rather than on a universal rule that all children under the age of ten mustn't be left alone. After all, there are some eight-year-olds I would trust with the keys to my house and my car, and some eighteen-year-olds I wouldn't allow anywhere near either.

The mum's appeal was heard by the Supreme Court, and it is the decision of the Supreme Court judge rejecting her appeal which was the basis of the Sun's story. Unfortunately, as much as I sympathize with the reasons for the appeal, the Supreme Court was right to dismiss it. 

First, appeals aren't opportunities to have a case heard all over again, particularly in cases like this, where the decision appealed from is discretionary. As the court said,
"[12] ... The decision of the Provincial Court judge should not be interfered with in the absence of some material error. The function of this court on appeal is ... to determine if [the judge] erred in law or disregarded or overlooked some relevant matter ..."
In other words, the appeal court must respect the original judge's decision unless he or she made a significant mistake about the law or didn't take into account some important fact that might have influenced the outcome.

Second, the court hearing an appeal generally isn't allowed to interfere with original judge's decisions about the facts of a case. After all, the judge hearing the appeal wasn't there to observe the witnesses and make decisions about their credibility.
"[27] I am obliged to defer to the findings of fact made by the trial judge absent a palpable and overriding error. ..."
Third, the original judge was stuck having to give a lot of weight to the social worker's opinion because of the Re N.K. case, whether you agree with that opinion or not.
"[22] ... great deference is owed to the evidence of social workers in the presentation hearing content. ..."
Fourth, the burden on the original judge at the presentation was extremely low, and did not involve making decisions about whether the child was actually at risk of harm:
"[16] ... at the presentation hearing, the [government] need not show, and the Court need not conclude, that the child is actually in need of protection in order for a supervision order to issue ..."
In these circumstances, the fate of the mum's appeal was almost foregone. 

So, what should parents take away from this decision? I'm afraid not much.

You certainly can't conclude, despite the Sun article, that all children under age ten can no longer be left alone in British Columbia, because neither the Provincial Court judge nor the Supreme Court judge made that conclusion, and because there is no law in British Columbia which says so. The Provincial Court judge was obliged to accept the social worker's evidence, and the Supreme Court judge was in turn obliged to accept the facts as found by the Provincial Court judge. At the end of the day, the social worker's opinion, although informed by her years of service and doubtless well-intentioned, is just her opinion.

What you can take away from this case, however, is the danger of rebuffing the interventions of Ministry workers. In the child protection cases I've handled in the past, the sheet the worker fills out when speaking to a parent includes a checkbox labelled "refuses to accept services." When this box is checked, the Ministry's antennae go up and it becomes even more concerned that a child is at risk. As the Supreme Court judge said,
"[41] I also note that ... [the mother] refused to permit the social worker to speak with [the eight-year-old], and in doing so kept her from undertaking the individual inquiry that [the mother] now says should have been done. ..."
Refusing to cooperate with the Ministry in a child protection case can have serious consequences, such as further investigation or, as happened in this case, the filing of a Form F Report, even though the mum was well within her rights to do so. Compliance with the suggestions of the Ministry, even if they strike you as intrusive or unnecessary, is an awfully good idea.

11 September 2015

Court of Appeal Releases Important Decisions on Spousal Support

The Court of Appeal for British Columbia has released two important decisions on spousal support this year, Morigeau v Moorey, published in April, and Zacharias v Zacharias, published a few days ago. Both deal with payors' applications to vary consent orders requiring them to pay spousal support because of the recipient's repartnering.


In Morigeau, the parties had been married for 20 years and had two children before separating in 2007. In 2011 they entered into a final order, by consent, which required the husband to pay $1,800 per month to the wife as spousal support. At the time of the order, the wife had begun to live with someone else.  In 2013, the husband applied to cancel or reduce his spousal support obligation on the grounds that:
  1. the wife was living with her partner, who was employed and had a pretty good income;
  2. the wife's income had increased; and,
  3. his income had decreased.
In Zacharias, the the parties had been married for 31 years before separating. They also had two children. Sometime around 2008, the decision isn't clear, they entered into a final consent order requiring the husband to pay $6,000 per month in spousal support. The wife remarried in 2012. In 2014, the husband applied to cancel or reduce his spousal support obligation on the grounds that:
  1. the wife had remarried;
  2. the wife had built a new career for herself and her income had increased;
  3. the combined income of the wife and her new spouse exceeded his; and,
  4. the wife's personal net worth now exceeded his.
The basic facts of each case are fairly similar and are honestly rather typical of the circumstances that usually motivate payors to try to escape, or at least lessen, an obligation to pay spousal support.

The Law on the Variation of Orders for Spousal Support

These cases gave the Court of Appeal the opportunity to restate the law on the variation of spousal support orders. The court has been a leader in Canada on the issue of spousal support and has really tried to clarify the law with important, landmark decisions like Chutter v Chutter and Tedham v Tedham. Here's  synopsis of the key points made in Morigeau and Zacharias:

1. Spousal support may be ordered because of compensatory factors, because of non-compensatory factors or because the parties have an agreement it will be paid, or because of a combination of these reasons. (Zacharias, paragraphs 26, 27, 28, 38 and 39)

The Supreme Court of Canada in Bracklow v Bracklow said that support can be paid for compensatory or non-compensatory reasons. Compensatory reasons are about compensating a spouse for the economic advantages or disadvantages that were caused by the marriage or its breakdown. The main goal of compensatory spousal support is to fairly share the economic consequences of the marriage.

Non-compensatory reasons are about the financial hardship separation can cause and are aimed at helping the financially dependent spouse become self-sufficient. An award of spousal support for non-compensatory reasons is based on the idea that spouses have a responsibility to care for each other and requires an examination of the needs and mans of the spouses, the nature of the marriage and the length of the marriage.

2. When spousal support is ordered for compensatory reasons, the amount payable can be determined by reference to the parties' standard of living during the marriage. (Zacharias, paragraphs 52, 54 and 56)

The marital standard of living can be used to measure the amount of compensation owing when a party is entitled to spousal support on compensatory grounds, as that standard is the standard fixed by the parties themselves as a result of the sacrifices made and advantages gained during their relationship.

3. Whatever the reason why spousal support is ordered, the order is a single order. (Zacharias, paragraph 39; Morigeau, paragraph 20)

Orders for spousal support under the Divorce Act take into account all of the factors set out in s. 15.2, compensatory, non-compensatory and contractual. While there may be more than one basis for an award of support, there is only one order; the order is not made up of discrete amounts for a compensatory claims and non-compensatory claims.

4. A material change in circumstances is required before an order for spousal support will be changed. (Zacharias, paragraph 29; Morigeau, paragraphs 10, 13 and 26)

Section 17(4.1) of the Divorce Act says that the court must "satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred" since the original order was made before it can change that order. In Willick v Willick, the Supreme Court of Canada held that such a change must be significant and have been unforeseen when the original order was made.

Because the considerations for original orders for spousal support are different than the considerations on applications to vary support, the case law on original orders under s. 15.2 is of little use in applications to vary under s. 17.

5. An application to vary spousal support is not a new hearing on whether someone is entitled to support or, if so, how much should be paid. The application is a hearing about the change in circumstances and the circumstances in which the original order was made. (Zacharias, paragraph 30; Morigeau, paragraph 13)

An application to change a spousal support order is not a fresh hearing of the case as if the recipient's entitlement to support were being decided for the first time; the original order must be accepted as appropriate. As the Supreme Court of Canada held in LMP v LS, the focus of the application should be on the change in circumstances and how that change may or may not effect the payor's obligation to pay support.

6. The fact that the recipient of spousal support is in a new relationship is not in itself a change of circumstances. (Zacharias, paragraph 67; Morigeau, paragraphs 13, 33, 39, 40 and 51)

In G(L) v B(G), the Supreme Court of Canada held that the remarriage or repartnering of a recipient doesn't necessarily mean that the spouse should be presumed to be financially independent, and thus shouldn't be presumed to be a material change in circumstances. If the economic basis for making the original order remains unchanged, there is no basis for variation whether the order was made on compensatory or non-compensatory grounds.

7. In an application to vary spousal support, the court will need to consider the reasons for the the original order. (Zacharias, paragraphs 33, 41, 42, 43, 44, 45 and 50)

The nature of the required material change in circumstances will depend on whether the original order was made on compensatory, non-compensatory or contractual grounds.

The analysis will be easiest where reasons for judgment, a judge's written decision, explain the basis of an order for spousal support. However, if reasons are not available, the court hearing the application to vary may need to determine the bases on which the original award was made.

8. When a change in circumstances is established, the court must then consider whether the change justifies variation of the original spousal support order. (Morigeau, paragraph 26).

In KD v ND, the Court of Appeal held that once a material change is established, the court must then consider whether the change justifies variation of the order considering the factors set out in s. 17(7) of the Divorce Act.

9. When an order for spousal support is made on compensatory grounds, the goal of compensation will be met when the recipient has achieved a standard of living equivalent to that enjoyed during the relationship. (Zacharias, paragraphs 58, 60 and 61; Morigeau, paragraph 37)

When recipient spouse has achieved a standard of living equivalent to that enjoyed during the marriage, the need to compensate will be satisfied. The spouse's standard of living when the application is heard includes the income available from all sources, including that of a new partner, but excluding the income realized from the spousal support order.

Applicability to the Family Law Act

In Rathlou v Haylock, the British Columbia Provincial Court held that the provisions of s. 161 of the Family Law Act on entitlement to spousal support are "substantially identical" to those of s. 15.2(6) of the Divorce Act; in Hutchen v Hutchen, the British Columbia Supreme Court held that the provisions of s. 162 on the amount of spousal support are "so close" to that of s. 15.2(4) of the Divorce Act that "any difference is immaterial. Accordingly, in Sinclair v Sinclair, the Supreme Court held that the result of applications for original orders for spousal support should be the same whether brought under the Divorce Act or the Family Law Act.

However, the provisions of the Family Law Act on the variation of orders for spousal support are a bit different, and a bit broader, than those of the Divorce Act. Here's what the Divorce Act says at s. 17:
(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses ...
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. ...
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; 
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; 
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and 
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
Here's what the Family Law Act says at s. 167:
(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively. 
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made; 
(b) evidence of a substantial nature that was not available during the previous hearing has become available; 
(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.
(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that
(a) the order is necessary to relieve economic hardship that
(i) arises from a change described in subsection (2) (a), and 
(ii) is related to the relationship between the spouses, and
(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.
As you can see, the provisions of the Family Law Act on the variation of orders for spousal support are quite different from those of the Divorce Act. Although Zacharias and Morigeau will apply to interpreting the Family Law Act where there are similarities between s. 17 and s. 167, recipients and payors must remember the additional terms about new evidence and non-disclosure and recipients must be mindful of the criteria for varying fixed-term orders.