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.

Background

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.

A Brief Guide to Making a Better Argument

The ability to muster up a decent argument is an important life skill; it's why we live in a democratic civil society governed by the rule of law rather than an anarchic Thunderdome where might makes right. It's not just first-year university students who benefit from the ability to make a good argument. It's what you need when you want to pitch an idea to your boss, ask for a raise, write an editorial, sell a product, argue an application in court, or comment on a blog post.

The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct.

Here, for example, is a simple but valid argument:

All cats are mammals. All mammals die. Therefore all cats die.

If the reasons for the argument are true (that cats are mammals and that mammals die), then the conclusion must be true. This is very basic example of a valid argument; you might make other, more complicated valid arguments about:

• why you should buy this car as opposed to that car,
• why you cast your vote a particular way during an election, or why you might decide not to vote at all,
• why you and your spouse should separate,
• why a certain parenting schedule should prevail after separation, or
• why someone's argument in a blog post is incorrect.

However, not all arguments are good arguments. Some are contradictory or nonsensical, and others contain errors of reasoning. For example, here's an argument that sounds like a good argument:

Some people are mechanics. Some mechanics fix cars. Therefore some people fix cars.

But it's not a good argument. Here's a counter-example that shows the error in reasoning:

Some machines are capable of flight. Some things capable of flight are birds. Therefore some machines are birds.

Formal logic errors can be difficult to detect, but they're fun to find when you do. Of course, in legal matters, finding a logic error can depend on not just the structure of an argument, but on having a deeper understanding of the legal principles that apply, and equally deep understanding of the facts. For example, an argument like

I am entitled to see the children and I am required to pay child support. She doesn't let me see the children. Therefore I don't have to pay child support.

won't fly, even though it may sound reasonable at first glance. The reason why it won't fly is that there is no legal connection between a parent's obligation to pay child support and a parent's entitlement to spend time with the children support is being paid for. They are entirely separate issues.

As well as formal logic errors and errors of law, there are the informal logic errors called fallacies. These are errors in how we think about things and analyze a problem, and frequently appear in letters to the editor, arguments in court and comments to blog posts. The following are a few of my favourite fallacies.

The circular argument

In this sort of argument, also called the circulus in demonstrando, the correctness of the conclusion is assumed and becomes the reason why the conclusion is correct. For example:

A equal parenting schedule is fair because it is an equal parenting schedule.

Arguments like this aren't very helpful because the reason for the conclusion is the conclusion itself.

Argument from ignorance

This argument, the argumentum ad ignorantiam, says that something is true because it hasn't been proven not to be true, or that something is false because it hasn't been proven to be true. For example:

This bill simply makes it the applicant's job to prove that it is NOT in the best interests of the child to have that sort of arrangement. So you will have to explain better why this isn't beneficial. Children have a right to an equal relationship with their parents.

This argument says that because the original speaker has not explained why a proposed legal presumption is inappropriate to the satisfaction of the speaker that it must be appropriate. The argument isn't very helpful because it doesn't add any information to the discussion in support of the speaker's views apart from his disagreement with the position of the original speaker.

The argument against the person

Also known as an ad hominem argument, this argument argues for its conclusion by avoiding the actual subject at issue and attacking the other person. Here are a number of examples:

Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass.

What it this? I read this in its entirety and its a blatent [sic] attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment [sic] were to be made into law. Compensation cowboys, the scum of the earth.

Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it?

Perhaps being a Family Law lawyer you are just used to presenting baseless assertions.

The problem with arguments like these is that they say nothing about the subject at issue. They merely attack the person who is disagreed with. They also come across as rather juvenile and undermine the speaker's credibility.

Argument by appeal to authority

This argument, also called the argumentum ab auctoritate, tries to support its conclusion because of the authority or standing of the person making the argument, or of another person who has made the argument. For example:

We strongly disagree with your opinions. Leading Women For Shared Parenting is an international child advocacy group with but one cause: a rebuttable presumption of shared parenting in family law. We have a strong group of practicing family lawyers, domestic violence advocates, shared parenting researchers, elected officials and others who all support shared parenting.

This is yet another kind of argument which explains nothing about the reasons supporting the conclusion, and the context in which the argument is made, including in reply to the argument of someone else, is irrelevant. It says "this conclusion is correct because it is I who hold it." Unless you are prepared to uncritically subscribe to the speaker's authority, this argument is pointless.

Here's another example, in which the speaker merely quotes someone in a position of authority and high social regard:

"If there is a divorce in the family, I urge a presumption of joint custody of the children. Whereas it is impossible to change thousands of years of sex-role stereotyping through legislation, we can hope, in an existential fashion, that attitudes can be changed through education and the passage of laws." 

- Karen DeCrow, American feminist attorney, President of the National Organization for Women

The fact that Ms DeCrow has said this doesn't mean that she is right, and, as a result, it doesn't mean that the speaker is right either. Here's a counter-example to prove my point.

"Mars is somewhat the same distance from the Sun, which is very important. We have seen pictures where there are canals, we believe, and water. If there is water, that means there is oxygen. If there's oxygen, that means we can breathe." 

- Dan Quayle, American business person, former Vice-President of the United States of America.

See what I mean?

However, it is not an appeal to authority to refer the listener to a source of information, such as website, book, journal or academic paper. For example:

The work of Professor John Wade is a good starting point on the subject.

The difference here is that speaker is providing a resource for further reading on the part of the listener rather than relying on the resource as authority for the speaker's proposition.

Argument by taking out of context

This sort of argument, also called the fallacy by quoting out of context, is particularly popular in American politics and attacks a position by taking the speaker's original words out of context and dumping them into a new context. for example:

And of course all the child murders in Australia is a good reason to oppose it too, right JP?

This selective reference distorts the speaker's meaning by presenting them without explaining the circumstances surrounding the original speech.

The red herring argument

This argument presents a side- or non-issue to distract from the issue being discussed. For example, a statement like

The argument that I don't buy into is that if one parent was previously a bread winner they are presumed to be a less capable parent.

which purports to reply to an argument or reason that has not been stated by the original speaker. This sort of argument says nothing about the main subject under discussion. Here's another:

One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings. First their children are forcefully taken away from them, then they are forced to pay crippling amounts of money to "support" children they rarely get to see. Sounds suspiciously like financial slavery to me.

In the context of a discussion about the merits of a presumption in favour of shared parenting, the payment of child support and histrionic claims of "financial slavery" are irrelevant and don't add anything to the central issue of shared parenting. They merely distract from the subject of the discussion.

Argument by Shifting the Burden of Proof

In this argument, the speaker argues that it is the listener's job to disprove the speaker's conclusion rather than providing reasons to prove the speaker's conclusion. For example:

There's no justifiable reason for not giving equal access from day one of most separations.

This sort of non-argument provides no support for the speaker's conclusion.

The argument through false dichotomy

Also called the black-or-white fallacy, this argument sets up two positions as polar opposites, implying that the subject of the argument is either all one thing or all the other. For example:

You know what the presumption is in high conflict separations currently. It is specifically 2 weekends a month for the "visitor" parent, with 1 movie night in between.

In the context of a discussion about shared parenting, this misleading statement suggests that either there is shared parenting or one parent has the children for two weekends a month, as if there were no other potential arrangements for the children's time. Here's another example:

To clarify, when a mother wins custody, a father must lose it. He must give up has children to the mother or go to jail.

In fact, joint custody — where both parents have custody — is a very common post-separation arrangement in Canada and people don't go to jail about it. The point of arguments like these is that they try to strengthen the speaker's point by establishing the greatest possible contrast between the two positions and eliminating the possibility of a middle ground. And another example:

One wonders why the system must be adversarial, arbitrarily picking winners and losers. One also wonders why the winners are almost always women and the losers are almost always men. One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings.

The appeal to hypocrisy argument

This argument, also called the tu quoque fallacy, attempts to counter an argument by asserting that the original speaker has personally behaved in a manner inconsistent with his or her argument. It attacks the speaker rather than the argument. For example:

"A equal parenting schedule is fair because it is an equal parenting schedule." Those were YOUR words JP! No one in your comment section wrote that. Again, nice straw man you knocked down there.

This argument attacks the speaker rather than the substance of the argument, and in this example is especially egregious as the premise itself is false. Here's another example:

Did you get my challenge to ACTUALLY post evidence in support of your claim that "the Australian experiment was disastrous"? You must be busy over the holiday season. Or perhaps being a Family Law lawyer you are just used to presenting baseless assertions.

The problem with the appeal to hypocrisy is that, like the ad hominem argument, it attacks the speaker while avoiding addressing the issue on its merits.


I will close by repeating my remarks from the beginning of this post. The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct. 

Properly reasoned arguments, advanced without formal logical errors or fallacies, are, in general, compelling and encourage respect for the speaker and the point he or she is making. Good arguments can also move the listener toward accepting the speaker's conclusion, and this accomplishment can be tremendously important, whether the listener is a judge, a client or a potential client, a police officer or border guard, an employer, a landlord, a politician or the author of a blog. What I have presented here is only a small fraction of the formal and informal logic errors that can sink an argument. If you are interested in working on your ability to argue, you should consider joining a debating club, such as the UBC Debate Society, picking up a book on logic, or taking a course in logic from your local university's Department of Philosophy. 

Court Comments on Records Requirements for Guardianship Applications

Regular readers will recall that under the new Family Law Act, people who must apply to be appointed as a guardian of a child — remember that some people are automatically guardians — are required to prepare a specific form of affidavit with certain documents attached to it. Section 51 of the new act says this:

(1) On application, a court may

(a) appoint a person as a child's guardian ...

(2) An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 of this Act. ...

To figure out what evidence must be provided to the court, you have to look at Provincial Court Family Rule 18.1 if you're making your application in the Provincial Court, or Supreme Court Family Rule 15-2.1 if you're in the Supreme Court. Both rules say that:

1. you must file a special affidavit, Form 34 in the Provincial Court or Form F101 in the Supreme Court, within a certain number of days of the hearing; and,
2. "any records check, criminal records check or protection orders records check" attached to the affidavit must have been prepared within a certain number of days of the hearing.

To figure out what checks are required, you then have to look at the special affidavit. 

This overall arrangement is somewhat peculiar, as none of s. 51(2), PCFR 18.1 or SCFR 15-2.1 state that the records checks must be provided or explain the sort of checks that are required. This task is left to the affidavit forms and the affidavit forms are, in hindsight, not as clear as they could be. This is what PCFR Form 34 says on the issue (the text in italics is the instructions provided by the form) :

9 Attached to this affidavit and marked as Exhibit ______ is a copy of a British Columbia Ministry of Children and Family Development records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.] 

10 Attached to this affidavit and marked as Exhibit ______ is a copy of a Protection Order Registry protection order records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

11 Attached to this affidavit and marked as Exhibit ______ is a copy of a criminal records check dated ______ obtained from the ______ [name and location of police force or department from which the criminal records check was obtained]. [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

These ambiguities were before Judge Frame of the Provincial Court in Director and L.M.P. / L.M.P. v. K.P., a case involving a father who never resided with his child or regularly cared for the child, and accordingly was required to apply to be appointed as the guardian of his child. As the court put it,

"[2] During the course of the proceedings, the issue of [the father's] criminal record check arose. Clearly the criminal record checks conducted both by the Ministry of Children and Family Development, as well as the one obtained by [the father] pursuant to the family law legislation, do not disclose his criminal history. Thus, the issue arose whether a criminal record check was a mandatory or compellable requirement, what form of criminal record check was to be conducted, and what results are adequate for the purposes."

After reviewing the requirements of the act and the Rules of Court, the judge embarks on a very welcome discussion of the nature of police policies, and the available criminal record checks, their costs, their wait periods and their relative inadequacies. (This overview will be very helpful for anyone who must complete a Form 34 or Form F101, see paragraphs 12 to 39 of the judge's decision.) Here are the court's conclusions, with the particularly important bits in bold:

"[47] It is clear that in order to meet the purpose and requirements of the legislation, the criminal record check to be performed must include a vulnerable sector search [a special search that reports all police involvements, all information related to non-convictions and all charges regardless of what happened with them]. ... 

"[49] I am not satisfied that the existing legislation is sufficient to compel a person to obtain a criminal record check, much less the secondary fingerprint search. Where there is such a positive obligation upon an applicant to disclose such sensitive information, there ought to be mandatory language in some part of the legislation, be it the Family Law Act, the rules, or the regulations bringing the form into force. 

"[50] Furthermore, I am not satisfied that Form 34 contemplates any more than the preliminary criminal record check such as the one obtained by [the father]. Paragraph 12 of that affidavit form provides a section for the applicant to complete where the criminal record check omits some part of a person’s criminal history. It recognizes that the criminal record check may not be complete. The [applicant] is only required to disclose convictions for which there is no pardon. Presumably if a person were convicted of a sexual offence for which they were pardoned, there would be no obligation to disclose it. This defeats the whole apparent intention of protecting children who are members of a vulnerable sector.

"[51] I cannot tell from the evidence before me whether a person can obtain a vulnerable sector search for themselves through any other police agency, but it certainly cannot be obtained from the Vancouver Police Department for personal reasons. It appears this is based on RCMP policy. If applicants cannot obtain a vulnerable sector search, it seems to defeat the whole purpose of having the criminal record check done for a guardianship application. ... 

"[54] I am not satisfied that I have the authority to order [a] secondary fingerprint search absent any legislation empowering me to do so. There is no inherent jurisdiction in this court to make such orders. This goes beyond matters of procedure over which this court does have some inherent jurisdiction. ... 

"[56] The most practical procedure would be for [the father] to attend the detachment where he obtained his initial criminal record check and request a fingerprint search. While I cannot order him to do so, it is more practical than he or any other party trying to determine all of the detachments with which he had any engagements and make applications for disclosure of their records. ... "

In other words, the specific check an applicant for guardianship must obtain for the purposes of the Family Law Act is the particularly intrusive vulnerable sector search. However, an applicant cannot be compelled to request the vulnerable sector search, the form doesn't appear to require it, and policy policy appears to prevent applicants from getting it. Isn't this awkward. Making matters worse, the court's proposed solution — having the applicant attend at a police station to request a special search using fingerprint identification— is something that an applicant cannot be compelled to do.

It appears, then, that a person applying to be appointed as the guardian of a child is only required to provide the sort of brief check you can get by walking into a police station and asking for the check. It would be prudent to ask for the secondary fingerprint search; whether court can force you to do this or not, it will help to demonstrate your good faith in making the application.

Now, the Supreme Court is a court of inherent jurisdiction, which means that it is not limited by what the legislation says it can do when it makes orders. It is also a court of parens patriae jurisdiction, which means that it can make such orders as are necessary for the benefit of a child, usually when there is a gap in any applicable legislation. This may affect the outcome when similar issues arise in that court.

Supreme Court Announces Assize Project in Vancouver

Chief Justice Bauman has announced (PDF) the implementation of a pilot project to test an assize scheduling system for long civil chambers applications in the Supreme Court's Vancouver registry. The pilot project began on 7 January 2013. The pilot project is only available for cases that do not involve criminal law, family law or judicial reviews.

Chambers Applications

Every court day, masters and justices hear applications in chambers. Applications are requests for orders, usually temporary or short-term orders, that are made using affidavit evidence and are expected to take a relatively short time to hear, anywhere from five minutes to two days. Chambers is the courtroom where applications are heard.

Normally, someone who wants to make an application will just pick the court day that the application will be heard. Although some days are predictably busier than others, things usually work out pretty well; most of the time, there's enough time to at least get the shorter chambers applications heard. However, when an application is going to take a half an hour or more to be heard, things can get pretty hairy.

There are only four and a half hours in the normal court day. (Court starts at 10:00 and runs to the lunch break at 12:30, with a fifteen minute recess partway through. Court resumes at 2:00 and runs until 4:00, with another fifteen minute recess.) This is not a lot of time. Applications of less than an hour routinely chew through all of the morning, leaving a handful of applications left that might take half an hour, a whole hour or two hours to be heard. As a result, these longer applications often get bumped to another day. I never count on a two-hour application being heard in Vancouver on the day it's scheduled, and it's only an even chance than a one-hour application will go ahead. The situation is worse in New Westminster.

This is not the problem the new pilot project is meant to address.

When an application will take two hours or longer, the rules of court require that the application be scheduled with the court's trial coordinator. In theory this means that each application is assigned to a judge who will be free that day and has the time to hear it. In reality, some applications are assigned to a judge and others wind up being listed on the dreaded overflow list.

Being on the overflow list is not good. A judge may become available to hear your application that day or a judge may not; either way, you wind up cooling your heels in the registry for at least an hour or two on the off-chance that you'll be lucky enough to land a judge before giving up and going back to the office.

This is the problem the new pilot project is meant to address.

The Assize Project

An assize system is a way of scheduling hearings which works in blocks of one or two weeks. If someone wants an application to be heard, all they get to pick is the assize period in which it might be heard. At the beginning of the period, a judge or the trial coordinator will triage all the applications set for that period and sort them from most important to least important, with the most important applications getting priority and going first. Applications that can't be scheduled wait to see what happens with the other applications being heard in that period; if an application gets done faster than expected or is adjourned, the unscheduled application next in priority gets heard.

In theory, this is a more flexible way of using judicial time which accommodates applications that unexpectedly collapse, allows every hour a judge is available to be occupied with an application, and therefore gets more applications heard in the same amount of time.

However, as the announcement from the Chief Justice clearly indicates: "placing an application on the assize list does not guarantee that the application will be heard." The other major downside is that the people making the applications have to be available during the entire assize period because you never know when your application will be heard, if it gets heard at all.

Getting on the Assize List 

An application may be put on the assize list if all of these factors are met:

1. The application will take between two hours and two days to be heard.
2. All of the lawyers and anyone who is representing him- or herself agrees to the application being put on the assize list.
3. Everyone is available for at least three of the five days in the assize period.
4. The case does not involve family law or judicial reviews.

The assize periods available for booking are listed on the scheduling page of the Supreme Court's website.

I'm looking forward to seeing how the pilot project pans out. If it works, I expect the project will expand to family law cases, and although I will have a great deal of difficulty working my schedule to be available during an entire assize period, if the new system gets long applications heard more frequently than they are at present, I'm all for it.