29 March 2015

Family Law Agreements and Independent Legal Advice

A colleague recently asked a question about the custom of sending people for legal advice before they sign agreements and I realized that, in light of certain provisions of the new Family Law Act, a refresher on the topic might be helpful.

Why it's important to get legal advice before signing an agreement

When people sign agreements about family law matters, lawyers always want those people to get legal advice about the meaning and effect of their agreements. (This is often called "independent legal advice," because each party is getting their own legal advice from their own lawyer, independent of the other party.) In fairness, this oughtn't be just a lawyer thing, it's a damn good idea in general.

Family law agreements, you see, are unusually important, sometimes more so than other kinds of agreement. Family law agreements:
  • are contracts, and, like any other contract, you're stuck with it if you sign it;
  • usually don't have an end-date and are meant to last forever;
  • contain terms that can have life-long impacts, like about the payment of spousal support and the division of property and pensions, 
  • deal with the most important things in people's lives, like how their children are cared for; and,
  • usually represent a compromise of people's legal rights, and sometimes the terms of an agreement are different than what the result might have been at trial.
As well, the agreements family law lawyers draft tend to be long and on the complicated side. Although the meat-and-potatoes stuff about who keeps the car, how the kids will be looked after and how the family home will be sold is all in there, lawyers add a lot of other stuff that is intended to strengthen an agreement against all the different ways an agreement can be attacked in court. This isn't about lawyers being neurotic arseholes, it's about making sure that the agreement stands the test of time and that everyones' interests are protected. Among other things, you'll see clauses that say things like this:
  • the agreement is a final settlement of all legal issues resulting from the relationship, and each person releases the other from all claims they might have as a result of the relationship;
  • each person has received independent legal advice or had the opportunity to get it;
  • each person has read the entire agreement carefully and fully understands what the agreement says and how it limits his or her legal rights;
  • each person has completely disclosed all information relevant to the negotiation of the agreement, and each person is satisfied with the other person's disclosure;
  • each person is signing the agreement voluntarily and hasn't been pressured into signing it by the other person;
  • if a part of the agreement is found to be void, the rest of the agreement remains binding on the parties;
  • a person's failure to insist that other do something as the agreement requires does not mean that he or she has waived that requirement;
  • the written agreement is the entire agreement, and there aren't any oral agreements that go along with it; and,
  • the agreement can be changed in the future, but only in writing.
There are many other clauses that you'll see in agreements prepared by lawyers, but these are the biggies.

As a result, it is really, really important important that you see a lawyer to get advice about any agreement before you sign it. You need to understand not just the nuts and bolts of the agreement, like who has to do what and when it has to be done by, you have to understand all of the legal gobbledegook too.

Do you have to get legal advice?

No, in all honesty, you don't... although getting legal advice is a really good idea.

In general, each person has an interest in making sure that the other person gets legal advice about the agreement. It sounds strange, I know, that you'd want you ex to see a lawyer and get advice about an agreement, but you do. You want to stop your ex from ever saying something like "gosh, I had no idea that the agreement said that, I never would've signed it if I knew that!" Now, agreements are presumed to be binding on you, whether you've read it or understood it or not, but there are circumstances when not having had legal advice makes it a bit easier to weasel out of an agreement.

You especially want the other person to get legal advice if the agreement is unfair to him or her!

What do you get when you get legal advice?

If you've read through to this point, you know that the lawyer you see will tell you about the meaning and legal effect of the agreement. In addition to this, the lawyer should get a lot of information from you about yourself, your family and the circumstances of your relationship and then tell you:
  • about the laws and legal principles that apply to your situation;
  • about the range of likely results if you and your ex took your dispute to court instead of trying to settle it;
  • about the risks and cost involved in taking your dispute to court;
  • whether the terms of the agreement are within the range of likely results and whether, taking all of terms of the agreement and all of your circumstances into account, the agreement is fair;
  • whether there are any problems with how the agreement is drafted; 
  • whether any changes are necessary to the agreement to make it fairer to you;
  • whether any changes are necessary to the agreement to better defend it against attempts to set it aside in the future; and
  • whether you should sign the agreement or not.
It's important to understand that the lawyer can't prevent you or your ex from signing the agreement. My job was just to explain the law and offer an opinion about the agreement, and although there were a few occasions when an agreement was so horribly unfair that I refused to witness a client's signature, I always respected my clients' right to settle a dispute.

What's the Family Law Act got to do with legal advice?

Firstly, the Family Law Act says that agreements are just as good as orders in settling a family law problem. As well, s. 6 says that agreements are binding on the people who've signed them, whether the agreement is filed in court or not, or whether the parties had advice from a lawyer or not.

Secondly and more importantly, the act says that the court can't make an order about spousal support or the division of property and debt if the parties have an agreement on those issues until the agreement has been set aside. This is really important; the old Family Relations Act didn't give this much heft to family law agreements! The parts of the act that talk about setting agreements on these issues aside, s. 93 for property and debt and s. 164 for spousal support, both say this:
On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; 
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; 
(c) a spouse did not understand the nature or consequences of the agreement; 
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
It's easy enough to read between the lines here and see why legal advice is so important. Legal advice will:
  • help you know whether enough disclosure was made to reveal all of the property and debts;
  • tell you whether all of the important information was probably disclosed;
  • tell you whether either person is being taken advantage of;
  • stop each person from relying on their ignorance of the law or the agreement if they try to have the agreement set aside in the future;
  • stop each person from claiming that they did not understand the nature or consequences of the agreement if they try to have it set aside in the future; and,
  • identify any problems with the agreement under the law of contracts that might cause all or part of it to be set aside in the future.
If you're signing a family law agreement that talks about spousal support, property or debt and you want that agreement to last, getting independent legal advice is a must.

How do you prove you've each had legal advice?

To be binding, each person must sign the agreement; there's normally a space for each party to sign at the end of the agreement, along with a space to write in the place where the agreement was signed and the date it was signed. Sections 93 and 164 also ask that each person's signature be witnessed by someone else, and that's normally also how lawyers prefer agreements to be executed.

What I used to do was send my agreements to the other person complete with a "Lawyer's Certificate of Independent Legal Advice" and a "Confirmation of Independent Legal Advice" for each party. The idea was that the client would sign the agreement and the confirmation, and the lawyer would witness the client's execution of the agreement and sign the certificate. The complete agreement would consist of the text of the agreement itself, two certificate and two confirmations, all of which would be stapled together for each copy of the agreement. This way, I had positive proof that each party had received independent advice.

Now, to be fair, these things aren't necessary. The certificate and confirmation are just forms I made up, but I they helped make sure that the agreement would stand the test of time ...and they also discouraged people from trying to set them aside. This is what my certificate said:
"I certify that I have been retained by ___________ to advise and have advised her with regard to the signing of the Agreement. 
"On the ________ day of ___________ , 2015 I fully read over and explained to ___________ the said Agreement, and informed her of the contents of the said Agreement as it effects her rights under the Family Law Act, the Divorce Act and the Wills, Estates and Succession Act, and she expressed herself to me as understanding the Agreement on and in light of her present and future circumstances as well as the present and future circumstances of ___________ .  ___________ indicated to me, and it appeared to me, that she entered into the Agreement willingly and not under any duress or stress exerted by ___________  and without any pressure or undue influence or deception on the part of ___________ or anyone on his behalf. 
"I believe that upon executing the Agreement, ___________ was fully advised and informed with regard to all the foregoing matters mentioned and may fairly be said to have acted independently therein."
You can see how this hits the highlights of ss. 93 and 164. The agreement was fully explained to the client, the client knew how the agreement would impact her now and in the future, the client said she understood the agreement, it seemed to me that she understood the agreement, and the client wasn't pressured into signing the agreement.

My confirmation was even simpler:
"I, ___________ , the above-named, state that I have read over the above Certificate of Independent Legal Advice and that the statements therein said to be made by me are true."
Feel free to use these if you'd like, just make sure that you translate them into English first.

Do you have to have a certificate of legal advice?

Nope. Having one just helps to prove that the person received legal advice, but it's not mandatory and there are other ways of proving that the person had legal advice.

26 March 2015

UK Expert Panel Releases Report on Child-Inclusive Mediation

The Voice of the Child Dispute Resolution Advisory Group released its final report (PDF) today. The advisory group was established by the UK Ministry of Justice to promote child-inclusive practice in out of court dispute resolution processes. The report proposes a new framework, process flow chart and agreement to mediate for child inclusive mediation and makes 32 recommendations, the most significant of which, in my view, are these:
  1. a presumption should be adopted that children and youth 10 and older should have the opportunity to have their voices heard if they wish; 
  2. pilot projects should be established to evaluate different models of child inclusive mediation; 
  3. the proposed framework and process flow chart should be adopted;
  4. mediation should remain confidential, as should the communications between the mediator and child;
  5. mediators should override children's wishes about disclosure and non-disclosure onluy in exceptional circumstances;
  6. competent children should be able to have their voices heard, regardless of parental consent; and,
  7. children should be provided with quality, age-appropriate information about separation.
The recommendations contained in this report are pragmatic and thoughtful, and propose a welcome extension of children's rights under the UN Convention on the Rights of the Child to have their voices heard in court proceedings affecting their interests.

Read the terms of reference for the advisory group and government's response (PDF) to the advisory group's final report.

19 March 2015

Important Judgment from the Ontario Court of Justice: Unmarried couples may be entitled to spousal immunity

In the case of R. v Lomond, a criminal case involving a bunch of driving offences, Crown counsel — the lawyer for the government who prosecutes criminal offences — sought to call the accused person's unmarried spouse as a witness, raising the issue of spousal immunity and whether it applied to people in unmarried relationships.

Spousal immunity is a principle of the common law which says that married spouses can't be forced to testify against each other in criminal proceedings, and is intended to protect and promote trusting spousal relationships. This principle has been overruled to some extent by s. 4 of the Canada Evidence Act, the legislation that applies in criminal proceedings. Under this section the Crown can require spouses to testify for the purposes of certain, specified offences, but otherwise:
"No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage."
You can see the problem. The immunity provided by the Canada Evidence Act and the common law rule applies only to "husbands" and "wives," and unmarried couples, regardless of how long they've lived together aren't "husbands" or "wives." As a result, the court had to decide firstly whether the nature of the couple's relationship was "common law" and, if so, whether the common law rule which prohibits the Crown from requiring accused person's spouses from giving evidence should apply to people in unmarried, "common law" relationships.

(I will pause here to again say that the term "common law marriage" in the context of these relationships is incorrect and misleading. There was such a thing once upon a time — a couple could be legally married, without marriage licences from the state or the blessing of a priest, by meeting in public before witnesses and promising to live together and be faithful to one another — but various Marriage Acts have long since repealed this form of marriage. Although the federal government persists in using the term "common-law partner" in its legislation, there is no such thing under the law. In fact, most of the time what matters is whether a couple fits a particular law's definition of "spouse," which makes the status of a relationship a statutory issue not a common law issue. The Family Law Act, for example, defines "spouse" as including married couples as well as couples who have lived together in a marriage-like relationship for at least two years.)

Thankfully, there are a boatload of cases that cover the issue of whether a particular romantic relationship is spousal or not in the absence of a legal marriage. The court drew from an old Supreme Court of Canada case about unmarried spouse's entitlement to statutory benefits to describe the factors that tend to show that a particular relationship is a spousal ("common law") relationship:
  • whether or not the persons have a conjugal relationship;
  • the degree of exclusivity of the relationship;
  • the conduct and habits of the persons in respect of household activities and living arrangements;
  • the degree to which the persons hold themselves out to others as an economic and domestic unity;
  • the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;
  • the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;
  • the degree of financial dependence or interdependence and any arrangements for financial support between the persons;
  • the care and support of children; and,
  • the ownership, use and acquisition of property.
Applying these factors, and a few others I haven't mentioned, the judge concluded that the accused and his partner were in fact in a spousal ("common law") relationship. On the question of whether this should result in the extension of spousal immunity, the court held (cites omitted, emphasis in original):
"[25] ... I find that the common-law rule is inconsistent with modern Charter values and an appropriate remedy would be to extend the non-compellability aspect of this to common-law couples. In doing so, I am persuaded by the analysis of the Alberta Court of Appeal in [R. v Legge] on the issue of interpreting the common-law in a manner consistent with the Charter. Paperny J.A. on behalf of the unanimous court wrote:
[35] Canadian courts have long applied and developed common law principles in a manner consistent with the values enshrined in the Charter ...  
[36] In [R. v Salituro], Iacobucci J. commented on the development of the common-law to comply with Charter values in the context of an exception to the spousal immunity rule (at para 37):
These cases reflect the flexible approach that this court has taken to the development of the common law. Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.
[37] At paras 48-49 he went on to say:
The Charter has played and will continue to pay a central role in defining the legal and social fabric of this country. As the Charter is the supreme law of Canada, any legislation or government action or law inconsistent with it is, to the extent of the inconsistency, of no force or effect. But the Charter will also be influential even in the absence of legislation or government action... Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed...
"[26] I find the analysis of Paperny J.A. apt in the particular circumstances of this case. [The partner] and the Defendant are in a committed, long term relationship akin to marriage. The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage. I find that it is both just and appropriate to extend the immunity rule to make common-law spouses in committed relationships akin to marriage non-compellable witnesses for the Crown. Put differently, [the partner] cannot be compelled to testify for the prosecution in this case, but I make no finding with respect to her compellability at the request of the Defence. ...
"[32] Having considered the narrow issue before me and the corresponding authorities on point ...  I find that an appropriate remedy would be a common-law remedy which addresses the current nature of the common-law rule as it pertains to common-law couples. These reasons do not purport to read in language to the [Canada Evidence Act] or expand the definition of husband and wife to include common-law spouses as envisioned by s. 4 of the [Canada Evidence Act]. ..."
And there you go. The courts of Canada can and should use Charter values to adapt the principles of the common law where the rationale underlying the common law is inconsistent with the Charter, and in this case the result was the extension of the common law principle of spousal immunity to unmarried ("common law") spouses.

12 March 2015

Important Evaluation of Clicklaw's Wikibooks: Courthouse Libraries BC needs your help!

Courthouse Libraries BC has just started an evaluation of its ever-expanding collection of wikibooks, maintained under CLBC's Clicklaw banner, and they need your input. Help CLBC out by visiting its Clicklaw Wikibooks page and checking out a title. A box will pop up asking to you to take a short survey, and the survey will load into that box when you're done with the wikibook.

Wikibooks are websites built on the open-source MediaWiki platform that powers Wikipedia. The platform is great for websites that offer large amounts of information, and is built to allow authors to quickly add and edit pages and allow users to search content quickly.

Clicklaw Wikibooks presently offers wikibooks on subjects including tenants' rights, consumers' rights, human trafficking, taxes, wills, being an executor, family violence and child protection. It also hosts my own wikibook, JP Boyd on Family Law, which is available in print at public and courthouse libraries throughout the province as well.

Please browse through a wikibook and give CLBC your feedback. This will help CLBC improve the free legal education material it provides and benefit all British Columbians.
  • Visit the Clicklaw Blog for more information about the evaluation.
Participants who complete the survey can be entered into a monthly draw to win a $100 prepaid Visa gift card.

The survey for the evaluation of most wikibooks will run until mid-June. The survey for the evaluation of JP Boyd on Family Law will run until mid-July.

09 March 2015

All About Separation: The 2015 Edition

On 3 March 2012 I posted a short article called "All About Separation," which addressed a bunch of questions I am often asked about the mechanics of separation. The post has since become the most frequently read article in this blog with 235 comments and 65,192 pageviews as of writing, dwarfing the next most frequently read article which had a mere 58 comments and 35,323 pageviews. However, lots has happened since 2012, chief among which was the introduction of the Family Law Act in 2013 and the repeal of its predecessor, the Family Relations Act, and it seemed to me that an update was long overdue. This is that update. Read on!

A lot of the people who find my wikibook and this blog have questions about separation. How do I separate? When am I separated legally? Can I see other people after I've separated? In this post I'm going to try and answer these and other questions. If I haven't answered your question, post a comment.

What is separation?

People in a serious relationship separate when one or both of them decides to end the relationship. People that are just dating break up. Normally, we think of married couples or couples who are living together as "separating" when their relationships end, probably because most of the time someone winds up moving out.

Separation is an important event under the Family Law Act, because the date of separation is:
1. the date when married and unmarried spouses get a right to a half-interest in all of the family property; 
2. the date when married and unmarried spouses take a responsibility for half of the family debt; and, 
3. the start of the two year period within which married and unmarried spouses must start a court proceeding to divide property and debt under the act.
Separation may also affect whether you are a child's guardian or not. Under s. 39(1), the parents of a child are deemed to be the child's guardians while they live together or after they separate. However, if you separate before the child is born, neither of the parents will be the child's guardian until a court makes an order appointing one or both parents as guardians. Ouch.

Hey, you just talked about "unmarried spouses." What do you mean?

People usually talk about couples in unmarried, long-term relationships as common-law spouses something similar. Even though most federal laws talk about common-law partners, "common-law" is actually wrong, and a bit misleading.

Once upon a time, a couple could get married without the need of a priest, rabbi, imam or marriage commission to utter an incantation and waive a wand. They could get married, simply by agreeing to stay with each other and be faithful to each other in the presence of witnesses. That was an old, now extinguished right under the common law. Hence the phrase "common-law spouse."

However, as I've said, this right is long since gone. All that counts now under the Family Law Act is whether you qualify as a spouse. Under s. 3 of the act, you are a spouse:
1. if you are married to someone else; 
2. if you've lived with someone in a romantic relationship for at least two years; or, 
3. for some but not all parts of the act, if you've lived with someone in a romantic relationship for less than two years but have had a child with that person.
How do I separate?

A couple is separated once one or or both of them has made the decision to end the relationship, said so, and then done something to carry through on the intention.

Often the decision to separate is made by both people, but it only takes one person decide to end a relationship, and a decision to separate doesn't require the other person's agreement. Everyone is entitled to separate if they wish to end a married or unmarried spousal relationship.

How do I know if I'm separated?

That's a tough one, because "separation" isn't defined in the Family Law Act. However, s. 3(4)(b) gives some guidance. It says that the court can consider "communication, by one spouse to the other spouse, of an intention to separate permanently" and "an action, taken by spouse, that demonstrates the spouse's intention to separate permanently" in deciding whether and when a couple have separated. In other words, the court can look at things you've said and things you've done to decide whether the relationship is over.

In general, the court will look at all of a couple's circumstances to decide whether they've separated. Has the couple stopped going out together? Have they told their friends that they've separated? Have they established separate bank accounts? Have they taken steps to deal with joint debt? Have they moved into different homes? Have they signed or started working on a separation agreement? Have they stopped having sex and spending the night with each other? Some separated couples will have done some of these things, others may have done them all.

Can we stay living in the same home?

Although many people move out when they separate, others separate and remain living under the same roof. In fact, s. 3(4)(a) expressly says that spouses can be separated even though they continue to live in the same home. A physical separation is not necessary to separate.

Frankly, continuing to live together isn't a bad idea as long as you can stand the company. It's a lot cheaper to stay in the same home with one set of bills than to move into two different homes each with its won set of bills to be paid.

Can I take stuff with me when I move out?

Sure, but be nice about it. Yes, you have a right to half the family property, which could include half the glasses, half the pots and half the furniture, but don't be mean and take half of these things to break up the sets. If you can't afford to replace the pots and pans, the cutlery, the plateware, the glasses and so on, take any extras first.

Also, don't take more than half of the family property unless there is no way to avoid it. This generally isn't a rush and the division of property and debt will be taken care of eventually. If your ex trashes the family property you leave behind, your ex can be made to compensate you for your share in any property that's been disposed of.

What you can certainly take is your own clothes and personal effects, anything your ex agrees you can take, and, if you have kids, a share of the children's clothing and toys.

Do I need to see a lawyer to separate?

No, absolutely not! The job of the family law lawyer is to help you resolve any legal issues resulting from the end of your relationship. The decision to separate can have legal consequences, and you might consider meeting with a lawyer to talk about those consequences, but separation itself is nothing we can help with.

But what's a legal separation?

There's no such thing as a "legal separation." (There used to be something called a "judicial separation," but that hasn't been available for a long time now. For more information about that, see my post "Little Known Family Law Facts #4".) Once you or your spouse or partner has left the family home or announced that the relationship is at an end, you're separated.

There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Okay, so what's a separation agreement then?

What people often mean by legal separation is a separation agreement. This is something else altogether. A separation agreement is a contract that people use to record their agreement about issues like how the children will be cared for, how their assets and debts will be divided and so forth. It has nothing to do with whether a couple have separated or not.

Separation agreements are not always necessary, especially if there's nothing to agree on, and you can't be forced to sign a separation agreement. See the Separation Agreements chapter of my wikibook for more information.

What's the date of our separation if we can't agree?

Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for unmarried spouses because of the time limits on claims for spousal support and the division of property and debt under the Family Law Act begin to run from the date of separation. For married spouses, these time limits begin to run from the date of divorce, which can be many years after the date of their separation.

Married spouses have no limitation periods to ask for spousal support under the Divorce Act.

The courts have talked about how to decide the date of separation. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties maintained a sexual relationship after they'd moved out and into separation homes. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."

A few other cases have also considered this issue. In Herman v. Herman, from the Nova Scotia Supreme Court in 1969, the court said this:
"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown." 
In Hills v. Hills, another case from the same court in the same year, the court said:
"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other." 
In McDorman v. McDorman, from New Brunswick Supreme Court in 1972, the court said:
"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, specially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown." 
Simplest of all, the Ontario Court of Appeal in 1970 in a cased called Lachman v. Lachman said:
"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist." 
What's desertion? 

Desertion is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, that arose after one spouse had abandoned the other for at least three years "without just cause." This ground of divorce has long since been abolished. These days we just rely on separation for a period of at least one year to get a divorce order.

Can I still have sex with my spouse after we've separated?

Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated. While it might cause some emotional difficulties, like prolonging the amount of time it takes to recover from a relationship that's broken down, there's nothing legally wrong with having sex with your spouse or partner. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the court decides that the care and control of the children should be managed, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into this sort of conduct in determining these issues.

The only thing you really need to think about is if you are married and are asking the court to make a divorce order based on your spouse's adultery or cruelty. If you have sex with your spouse after you've made the claim for divorce, you could be considered to have forgiven your spouse for his or her conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery or cruelty.

Can I start a relationship with someone else after we've separated?

Yup. Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider your relationship to have ended and whatever obligation you have to remain monogamous along with it. If you're married, you won't be divorced until you get a court order, but the marital aspects of your relationship and the attendant expectations of monogamy will be considered to be at an end.

Having sex with someone else will not have an impact on how the court decides that the care and control of the children should be managed, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into this sort of conduct in determining these issues.

Is having sex with someone else after we've separated adultery? 

Only married spouses can commit adultery. If you're married it is technically adultery to have sex with anyone other than your spouse while you are married, even after you've separated. However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can sex with someone else after separation be a ground for divorce?

Only married spouses need to get divorced. You cannot sue for divorce based on your own adultery. However, if your ex isn't happy that you're having sex with someone else, you are technically committing adultery which could be used as a ground for divorce.

Speaking of adultery, is it a criminal offence? Can I be charged with adultery?

Adultery on its own is not a criminal offence; it's not something that can see you can be criminally charged for.

01 March 2015

Court of Appeal Releases Important Judgment on the Complexity of Family Law, Limitation Dates and Commencement of Proceedings

In Halliday v Halliday, the Court of Appeal for British Columbia addresses the critical issue of limitation dates under s. 198 of the Family Law Act and how court proceedings are started under the Supreme Court Family Rules; although its conclusions on s. 198 aren't particularly surprising or detailed, the court's observations about the Rules make a point I expect few practitioners are alive to.

Halliday is one of those cases that are a procedural nightmare, with one misstep that goes unnoticed followed by another and another, until the file gets to the Court of Appeal which is then tasked with untangling the knots. This happens when lawyers are in charge of a case, but more often occurs when one or both parties are without counsel. I do not mean this as a criticism of or jab at litigants without counsel. The fact of the matter is that the rules of the Supreme Court are extraordinarily complex, can be difficult to interpret and can be difficult to apply. As it happens, in Halliday the husband was represented while the wife was not. Here are some pretty powerful comments from the court about the complexity of family law cases, cites omitted and important bits in bold as usual:
"[1] Family law cases contain many traps for the unwary. The Supreme Court Family Rules and the different legislative regimes are complex. Litigants must select with care the appropriate procedures under Family Rules. They must be mindful in seeking relief of the distinctions within and differences between federal and provincial legislation. While the Divorce Act, the Family Law Act, and the Family Relations Act, to the extent that it still applies, contain many similar provisions, they are not identical.

"[2] Particular care must be taken with regard to the procedures and time limits to bring proceedings to set aside provisions of a separation agreement. The fact that many family law litigants are unrepresented compounds the problem. The fine distinctions in procedure and in the legislation are often understandingly lost to the legally untrained and, I might add, to those that are legally trained. Recognizing the distinctions can be the difference between success and failure. This proceeding, to date, is a cautionary tale as to what can go wrong."
Speaking as someone who practiced family law in British Columbia for thirteen years, I couldn't agree more. This is a clarion call for both better access to digestible legal information and the reform of family justice. "Family law cases contain many traps for the unwary." They do indeed.


In a nutshell, the parties had been married for almost a quarter of a century before they separated in 2008. Within a year, the parties signed a separation agreement, without legal advice, dealing with the division of property and spousal support. (Bear with me, the explanation is a bit lengthy. This is a large nut.)

The agreement called for the husband to pay spousal support in the amount of $500 per month for twelve months, however the husband lost his job before the year was out and he made eight of the twelve payment required. The wife, however, wasn't particularly bothered by it and was prepared to call it a day.

The parties started a joint divorce claim a few months after signing their separation agreement. The only order sought was a divorce; no orders about property or spousal support were asked for. The husband returns to work about two years later

Fast forward to early 2014. The wife files the separation agreement in court, but not under the old divorce file, she files it in a brand new court file. Mistake number one. The wife also files a Notice of Application in the new court file. In her application, she asked for an order for spousal support and the division of assets and for the cancellation of the relevant portions of the agreement, doing so under the Family Law Act. Mistake number two.

The husband, represented by a lawyer, files a Response to the application, saying that the application is out of time because of the two-year limit in s. 198 of the Family Law Act is long past, and otherwise objecting to the order sought. The husband then files a Notice of Application asking for an order dismissing the wife's application.

The parties wind up before a judge, who decides that the wife's application to cancel the agreement couldn't be brought in a court file started by filing a separation agreement, the claim had to be made in an action started with a Notice of Family Claim. Mistake number three.

The wife then, following the judge's directions, files a Notice of Family Claim in the new court file. 

The husband files his Response to Family Claim as he normally would, and then files a Notice of Application asking for an order that the wife's claim be struck as it was out of time under the two-year limit in s. 198.

The application then gets before another judge, with each side relying on affidavits in support of their positions... even through affidavits aren't allowed on such applications. (If a claim is so flawed as to be struck, the problem ought to be obvious. Hence, no affidavits are allowed.) Mistake number four. The judge applies s. 198 of the Family Law Act and decides that the wife's claim is not out of time. Mistake number five.

The husband appealed the dismissal of his application to have the wife's claim struck.

Starting a Family Law Proceeding

Under the new Supreme Court Family Rules and the old Supreme Court Rules, there are two ways to start a family law case, either by filing a Petition or by filing a Notice of Family Claim (new rules) or Writ of Summons and Statement of Claim (old rules). Petitions are used when the entire claim can be resolved at a single hearing before a judge in chambers. Adoptions are a good example of this sort of action. Most of the time, we use Notices of Family Claim because we expect that the claim will end in a trial, that there will be a few applications heard before we get to trial and that we'll need to use the rules about disclosure and discovery. A Petition is a sandwich to go. A Notice of Claim is an eight-course sit-down dinner.

Under Rule 3-1(4.1) of the new rules, however, a "family law case" can also be started by filing a separation agreement in court. I expect that most family lawyers haven't noticed this; I hadn't. This small point is actually rather important, because lots of procedural options apply to family law cases. Among other things, you've started a case in which interim applications can be brought and which might potentially be resolved by trial. You've also triggered the obligation Under Rule 7-1(2) to have a Judicial Case Conference before you can apply for any orders, or even send your Notice of Application to the other side.

You can also apply for whatever interim orders you wish Under Rule 10-5, including orders to have the agreement cancelled and orders made in its place. In other words, having started a family law case by filing the agreement, it was open to the wife to make her first application for spousal support and a division of property without needing to start all over and a file a Notice of Family Claim. This is where the second judge erred.
"[58] This proceeding has regrettably been marred by a series of procedural errors and missteps. The proceeding was commenced when the Wife filed by requisition the parties’ Separation Agreement. Pursuant to R. 3-1(4.1), the filing of the requisition commenced the family law case. 
"[59] A party seeking an order to set aside or vary a separation agreement must do so by way of application: see Rules 10-5(1) and 10-5(2). Accordingly, the Wife was correct to bring an application to set aside the whole or part of the Separation Agreement.

"[60] The original application was brought before [the judge]. Unfortunately, the relevant Family Rules do not appear to have been brought to her attention. She erred when she advised the Wife that she could not obtain the relief she sought unless she issued a notice of family claim seeking spousal support. I note that the Husband’s counsel did not suggest otherwise."
Choosing the Right Law

There was an even more fundamental problem in this case: the Family Law Act was the wrong law. The new act has certain rules about how the old act, and cases started under that act, apply under the new act. In particular, s. 252 says this about issues relating to property:
(1) This section applies despite the repeal of the former Act and the enactment of Part 5 of this Act. 
(2) Unless the spouses agree otherwise, 
(a) a proceeding to enforce, set aside or replace an agreement respecting property division made before the coming into force of this section, or 
(b) a proceeding respecting property division started under the former Act
must be started or continued, as applicable, under the former Act as if the former Act had not been repealed.
This doesn't apply to claims about spousal support, but it does mean that it's the Family Relations Act, the "former Act," that governs the terms of the parties' separation agreement about property and applications to cancel those terms. Here's what the court said:
"[42] The effect of s. 252(1) of the FLA is to allow parties that would otherwise have been subject to the FLA property regime at the time they filed their claim to proceed under the old FRA regime despite it having been repealed. In essence, s. 252(1) preserves the FRA regime as it concerns property division for any separation agreements that were finalized before the FRA was repealed, unless the parties elect to proceed under the FLA.

"[43] There is no evidence that the parties agreed that the dispute be governed by the FLA rather than the FRA. Accordingly, an application such as that brought by the Wife to set aside or replace a separation agreement made before the FLA came into force and dealing with property division must be resolved under the FRA. Procedurally, this means that s. 198 of the FLA, the section upon which the Husband relies, could not be used as a means of dismissing the Wife’s proceeding to set aside the property provisions of the Separation Agreement.

"[44] The FLA does not contain a similar transition provision for separation agreements concerning spousal support. In the absence of a similar transition provision for spousal support, a party to a separation agreement finalized before the FLA came into force and seeking to vary the spousal support provisions of that agreement would have to proceed under the FLA. The question of whether a spousal support claim under the FLA would be statute-barred would then turn on the proper construction of s. 198(3)."
Curiously, the Family Law Act didn't need to apply to her claim for spousal support either. Because the parties were married, the wife could have applied for spousal support under the Divorce Act... and the singular advantage she would have had under the Divorce Act is that the act has no limitation periods. Once you have married, you can apply for spousal support, regardless of your separation agreement, how long ago you signed it or how long ago you were divorced.

The Limitation Period

Although the issue of s. 198 did not absolutely have to be discussed, the court did have some interesting things to say about it in relation to s. 164, the section of the Family Law Act on when an agreement on spousal support can be cancelled. Here's what the relevant parts of s. 198 say:
(2) A spouse may start a proceeding for an order under Part 5 to divide property or family debt, Part 6 to divide a pension, or Part 7 for spousal support, no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or 
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
(3) Despite subsection (2), a spouse may make an application for an order to set aside or replace with an order made under Part 5, 6 or 7, as applicable, all or part of an agreement respecting property or spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
Fairly straightforward, except for that last bit about when the "grounds for making the application" were "discovered." 
"[39] While 'grounds' is not defined in s. 198 of the FLA, s. 164 of the FLA sets out a myriad of factors that must be considered when a spouse seeks to set aside or replace a spousal support agreement. The factors are similar to those set out in Miglin. ... "
(The court then recites s. 164(1), (3), (4) and (5).)
"[40] Section 164(3) says that the court may only set aside or replace with an order all or part of an agreement when satisfied that one or more of the circumstances set out in that subsection existed. That provision is then contradicted by s-s. 164(5) which indicates the circumstances set out in s-s. 164(3) need not exist if the agreement is significantly unfair on consideration of a completely different set of circumstances. Given the language of s. 164 determining when a party first discovered, or reasonably ought to have discovered, the grounds for making the application is, I suggest, a matter of some complexity."
Of course, this doesn't shine any additional light on the cases interpreting ss. 198 and 164, but it does suggest that the "grounds" for making the application might be limited to those articulated in the legislation rather than extrinsic factors such as ignorance of the law or a disability preventing action.

My thanks to Mary Fus for bringing this interesting case to my attention.