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.

A. THE BASIC LAW ABOUT PERSONAL PROPERTY

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.

B. COURTS THAT CAN DEAL WITH PROPERTY CLAIMS

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.

C. ORDERS ABOUT PERSONAL PROPERTY

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.

D. THE FAMILY LAW ACT

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. …”

E. RECENT CANADIAN CASES

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.

F. SUMMARY

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.

"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.

Sealing of Family Law Judgments: Supreme Court Issues Important Decision

Mr. Justice Abrioux of the British Columbia Supreme Court has just provided his reasons in M. v M., a high-conflict family law dispute featuring allegations of abuse and parental alienation, and the evidence of no less than six expert witnesses. Although the case is well worth reading for the court's treatment of these issues, and perhaps especially for its scathing criticism of one expert in particular, I was struck by the court's discussion of the law on the sealing of judgments, a problem that rarely sees the light of day.

Owing, I expect, to the nature of the allegations made, the father sought an order that the judge's decision be sealed. This application is unusual in family law cases for two reasons. First, because of Supreme Court Family Rule 22-8(1) and Provincial Court Family Rule 20(10) which restrict access to court files to lawyers and to the parties to a file. Second, because of the court's increasing habit of referring to the parties and their children by initials to protect their identities... like this case, M. v M.

Although counsel came up empty when the judge asked them to research the requested order, the judge did find some law on the matter starting from the other end of the problem, the principle that courts are open to the public (cites included so that the research needn't be reinvented, important bits in bold):

"[7] ... there are established principles which govern this situation. Absent exceptional circumstances, a court is not a private forum. See A.B. (Litigation Guardian of) v Bragg Communications Inc., 2012 SCC 46 at para. 11; R.B.L. v British Columbia, 2005 BCSC 1068 at para. 29; Reference re: Criminal Code of Canada, s. 293, 2010 BCSC 1351 at para. 53; Re Vancouver Sun, 2004 SCC 43 at para. 23. 

"[8] The principle of an open court applies to family law cases and matrimonial court material: K.V.P. v T.E. (1998), 56 B.C.L.R. (3d) 344 (S.C.); Michie v Michie, 2010 BCCA 232 at para. 10. As noted in K.V.P. at para. 7:

… The onus of demonstrating harm is a high one. It is not enough that the defendant may be embarrassed or that he and his family may be subject to unwanted publicity. …

"[9] I have concluded that the overriding principle of the openness of the courts should not be displaced in the circumstances of this case. 

"[10] It is an unfortunate reality litigants face when, unable to privately resolve their highly personal disputes, there is a trial of the proceeding, which is in the public domain. 

"[11] I am mindful of the children’s best interests and in these reasons for judgment will attempt to anonymize certain individuals and events to the extent possible. But as is evident from the recent lengthy reasons for judgment of Mr. Justice Kent in N.R.G. v G.R.G., 2015 BCSC 1062, a case that had several of the features of this proceeding, it is difficult for the court, notwithstanding its best efforts, to insulate children from the effects of published reasons for judgment. 

"[12] Insofar as this proceeding is concerned, the number of witnesses who testified, the regular attendance in the courtroom of many friends and supporters, particularly on the claimant mother's side, and the fact I will be directing that these reasons for judgment be provided to the treating therapists, militates against providing oral reasons for judgment. In any event, providing oral reasons would not necessarily preclude these reasons from entering the public domain."

And there you have it. The principle of court openness is an "overriding principle" which applies in family law matters just as it does in non-family civil matters, and which will not be circumvented absent "exceptional circumstances." Moreover, the tawdry complaints that so many high-conflict file seem to involve do not qualify as "exceptional." In fact, the publication of such complaints is just one of the risks that litigants take when when they insist on resolving their disputes at trial, and perhaps ought to serve as a disincentive to litigation.

I haven't supplied the links to the cases mentioned by Justice Abrioux. Those cases, including K.V.P., can be found on CanLII.

It's Hammer Time: Provincial Court Exercises Extraordinary Enforcement Powers to Jail Litigant

British Columbia's Family Law Act improves over the old Family Relations Act in many ways, including by giving the Provincial Court the power to enforce its own orders, which is exactly what the Honourable Judge Bond did in the recent case of J.R.B. v J.H.F. 

Under the old legislation, the power of the Provincial Court to enforce its own orders was very limited. If you lipped off the judge, you'd get into some trouble for sure, but enforcing orders about guardianship, custody and access was very difficult — you actually had to commence a private prosecution under the Offence Act, a complicated process that hardly anyone ever attempted — and the court could not make costs orders. At least the Family Maintenance Enforcement Program more or less took care of enforcing support orders.

The new legislation, however, comes with some pretty sharp teeth, especially s. 231 which allows the court to imprison a person for up to 30 days if it is satisfied that "no other order" under the act "will be sufficient to secure the person's compliance." (The section also allows the court to make peace officer enforcement orders in respect of parenting time and contact, which I've discussed elsewhere.)

The decision in J.R.B. concerned the variation and enforcement of a number of orders made at trial, including a publication ban and a protection order intended to prevent all contact between the father and the mother and her family. (The father had been subject to similar orders prior to trial which he breached on "countless occasions," mainly when the child was between exchanged for the purposes of parenting time, and resulted in criminal harassment charges being laid.) The application before the court, apparently brought on behalf of the mother and her family, sought: an order that the protection order made at trial be expanded; and order that the father be prevented publishing material concerning the litigation and his relationship with the mother; and, an order that the father be imprisoned pursuant to s. 231.

The court allowed the first two claims for reasons that are well worth reading. As it's the claim concerning imprisonment that I'm mostly interested in, I'll just reproduce the court's orders on these two initial claims. With respect to the protection order, the court held that:

"[13] I am going to issue a further Protection Order that provides that [the father] is not to communicate directly or indirectly with any family member of [the mother and her spouse], known to him, including, but not limited to, communicating any of the details of his relationship with [the mother], or any of the matters that are the subject of this or the Supreme Court litigation between the [the mother and her spouse] except communication necessitated by this litigation through [the mother's] counsel. The Protection Order granted at the close of trial remains in effect. This order will not expire."

With respect to the publication ban, the court made a conduct order to the effect that:

"[19] ... [The father] shall not directly or indirectly participate in the disclosure, publication, or dissemination of any material outside of court hearings relating to his relationship with [the mother], or any matters that are the subject of these proceedings to any person, group or other entity except for the express purpose of participating in private therapy sessions addressing his own issues. Furthermore, [the father] shall not annoy or disturb the [the mother and her spouse], their children or family members, friends or church members, known to him, either directly or indirectly. To be clear, this order is not intended to address any conduct by [the father] which amounts to a breach of the Protection Order, which is intended to protect those covered by the order from risk of harm. It is intended to address other conduct by [the father] which has the effect of civil harassment of the [the mother and her spouse]."

Turning to the imprisonment issue then, the court first found that the father had breached the orders made at trial by: publishing the names of the parties and the children on the internet; speaking to members of the mother's church; and, making statements to the general public at the courthouse. (To be clear, the "statements to the general public" were not made in a courtroom in the course of a hearing. At paragraph 10 of her decision, the judge repeated the father's admission that on the day in question he "elected to stand in the court house announcing to all repeatedly that '[the mother's spouse] beats his kids' and '[the mother] is a liar'," and that "following the hearing, he apparently chose to read from his website at the top of his lungs in the hallway of the courthouse, for all to hear.")

Next, the judge clarified that the order that had been breached was the publication ban, not the protection order. This is an important point as protection orders cannot be enforced through the Family Law Act and must be handled as a criminal offence under the Criminal Code, whereas conduct orders, including the publication ban, can be handled through the act's general and extraordinary enforcement powers.

Drawing a parallel with the case law on civil contempt proceedings, the judge held that the purpose of s. 231 is "not to punish" but to "secure compliance" with court orders, in order to ensure that "existing and future court orders will be respected." Because this purpose is specific to particular orders applying to particular people, s. 231 must be applied in light of the particular circumstances of each case. In other words, any order must "specifically address the actual situation before the court," and the father's conduct in this case "must be viewed in the context of the entire proceeding."

The judge then considered the sanctions taken against the father thus far, the enforcement tools available under s. 228 that are specific to the enforcement of conduct orders, which include financial penalties and adverse inferences, and the enforcement tools available under s. 231 (important bits in bold and cites omitted):

"[27] ... [the father's] conduct must be viewed in the context of the entire proceeding, in which he has established a pattern of harassing [the mother and her spouse] to the extent that he was charged with and pled guilty to criminal harassment. Subsequent to being sentenced for that offence, he engaged in the conduct complained of, and other acts which appear to be intended to punish [the mother and her spouse] or perceived offences against [the father].  

"[28] While this context suggests that the lower range of the remedies offered may be inappropriate, it is well established that the sanction of imprisonment should be used sparingly, and only when no other remedy will be sufficient to secure the person’s compliance. However, neither party suggests that an alternative order is appropriate in these circumstances as this is not a situation where limits on conduct have not been previously considered. In fact, the restrictions on [the father's] contact with his son arise directly from his behaviour and his failure to address his lack of impulse control, issues regarding anger management, and the degree of his hostility and anger towards [the mother's family].

"[29] I note as well, that neither party suggests that an adverse inference is an appropriate remedy in these circumstances. In fact, the risk of an adverse inference being drawn did not inspire [the father] to fully disclose his financial circumstances prior to the commencement of the trial. 

"[30] With respect to an award of costs, a financial penalty or fine, [the mother] notes in her Affidavit ... that [the father] owes $12,000 in child support arrears despite the fact that he has apparently been employed throughout these proceedings. At the end of the trial, he was also ordered to pay $5,000 to [the mother], representing the remainder of his one-half share of the cost of the report prepared ... pursuant to section 211 of the Family Law Act. [The father] had previously been ordered to contribute to that cost, but failed to meet his obligation. [The father] has not made any payment towards either debt. In addition, counsel for [the mother] points out that [the father] was released on cash bail of $1,000 after being charged with criminal harassment and that did not deter him from breaching his bail conditions to keep the peace and be of good behaviour. In fact, [the father] continued to breach the Protection Order and his bail conditions until he was ordered detained.

"[31] In these circumstances, I do not believe that imposing any kind of financial consequences for [the father's] behaviour will have the effect of securing his compliance with court orders. No sanction, other than incarceration has worked to date to impress upon him the importance of complying with court orders and I find that 'no other sanction will force upon his will the authority of this court' as was the case in Manolescu v Manolescu." 

Having concluded that no option other than jail was likely to encourage the father to comply with the various orders made to date, the judge turned to the factors that should guide her decision on the nature and length of the father's imprisonment, and her conclusion on the issue:

"[33] I find that the following considerations apply when determining the duration of the appropriate period of incarceration:

a) the history of criminal harassment that predates the conduct complained of; 

b) the extended period over which [the father's] conduct persisted; 

c) [the father's] prior assurances that he had no interest in harassing [the mother] or her family; 

d) [the father's] apparent failure to address his lack of impulse control, anger management and hostility and anger towards the [the mother's family] through counseling or otherwise; and 

e) [the father's] involvement of others in distributing offending material about the parties to this proceeding.

"[34] In these aggravating circumstances, I find that more than a nominal period of incarceration is required to bring home to [the father's] the fact that he must respect the court’s authority. On the other hand, [the father's] must understand that further action will be taken if he continues to disrespect court orders in the future. In the result, I am going to sentence [the father's] to ten days in jail, to be served forthwith.

"[35] A warrant will issue for [the father's] arrest and he will be detained in custody at a Provincial facility for 10 days, commencing upon his arrest."

To summarize, the steps taken by Judge Bond are roughly these:

1. Determine whether the respondent has breached an order. 

2. Determine whether the breached order is a protection order or some other order available under the Family Law Act; do not proceed if the order is a protection order. 

3. Assess the gravity of the respondent's misconduct in the context of the entire proceeding, including any steps that have been taken to secure the respondent's compliance with the order, or similar orders, in the past. 

4. Consider the appropriateness of any specific enforcement tools provided by the legislation in respect of the order. If one or more of those remedies are likely to be effective, apply those remedies and do not consider a sentence of imprisonment. 

5. If imprisonment is necessary, review the circumstances of the proceeding to date to identify any aggravating circumstances that suggest that more than a nominal period of imprisonment is required.

Although the aggravating factors identified by the judge are drawn from the particular facts of the case before her, it seems to me that some general principles can be deduced:

6. Aggravating circumstances to be considered in determining the period of imprisonment may include:

a. the respondent's history of breaches before the breach which triggered the enforcement action; 

b. the respondent's past excuses for noncompliance; 

c. the respondent's past assurances of future compliance; 

d. the duration of the the respondent's noncompliant behaviour; and, 

e. the impact of the the respondent's noncompliant behaviour on the applicant.

I am grateful to Judge Bond for her clear writing and reasoning, and for taking up, on behalf of the Provincial Court bench, the powerful new tools the Family Law Act makes available.

Thanks to my colleagues Agnes Huang and Morag MacLeod for bringing this case to my attention.

Get Over It, Part Two: Thoughts from the Bench and a Few More from Me

In my recent post "Get Over It: Why it Pays to Let Bygones Be Bygones in Family Law Disputes," I talked about the foolishness of being guided by your hurt feelings or desire for revenge when taking a family law dispute to court. I also gave a few examples of the typical sort of silliness I often saw in my practice as a family law lawyer when parents managed their conflict by exchanging allegations and counterallegations in affidavits, such as this gem from early in my career:

Her: "You drink all the time. You're always drunk and there are empties all over the house. You even drive when you've been drinking." 

Him: "I only drink socially, one or two beers at most, and I never ever drive when I've been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter."

Since that post, a number of colleagues have brought to my attention two recent decisions by Madam Justice Sharma of the Supreme Court of British Columbia which make some rather pointed remarks on this issue, B.A.S. aka B.H. v S.R.S. and A.M.D. v K.R.J. Each case took two days to argue, and Justice Sharma apparently heard them back to back at the end of January 2015. If she happened to be frustrated by the nature of these hearings, which I am sure was not the case, such would be entirely understandable.

B.A.S. v S.R.S.

This decision involved the respondent's application to change a temporary order on parenting arrangements. As is usual for interim applications in the Supreme Court, the only evidence before the court was contained in affidavits. There was no oral evidence.

Here are the judge's preliminary comments about the quality of the affidavit material before her, with some of the more important bits in bold:

"[3] The affidavit material filed in support of and opposition to the application contained hearsay, double-hearsay, statements without attribution or that could not be in the affiant’s personal knowledge, argument, speculation and other statements of dubious admissibility. Allegations are flung from both sides. Each party objected to portions of the other party’s evidence and suggested it was either wholly inadmissible or should be given minimal weight.  

"[4] Some of the claimant’s and respondent’s affidavits relate singular incidents between a child and the other parent that were not significant in the overall assessment of what is the best parenting arrangement for the children. Both parties suggest there are times when they have not been appropriately notified of travel or minor medical and school issues from the other parent. They each accuse the other of talking about the parenting dispute in front of or directly to the children. 

"[5] In addition, the claimant’s affidavit contained a serious allegation against the respondent and his wife about drug use and association with criminals with absolutely no corroborating evidence. In my view, those allegations were improper and should not have been made."

Readers may recall my remark about such affidavit battles in my previous post to the effect that "each party is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty." Here is how the judge summarized the parents' positions:

"[9] In general, the respondent takes the position that the children are doing well living with him and his wife and are taking part in a wide variety of activities. He contends the children’s lives when they resided with the mother were 'fraught with conflict, to the point where [the children] expressed, and continue to express, a strong desire to reside' with him and his wife. The respondent seeks to reduce the children’s weekend visits with the claimant from biweekly to once a month and, instead of an entire month in the summer, two non-consecutive weeks with their mother. ... 

"[10] The reduction in the summer time is said to be based on the children’s desire to spend as much time as they can in [the respondent's city] so they can continue with their activities and visit friends.

"[11] The claimant’s response to the application is deficient. ... The factual basis for the response is encompassed in five bullets. Briefly, the claimant accuses the respondent and his wife of interfering with her parenting and making her communication with the children very difficult. The claimant’s position is that the application is not genuine and is a continuation of a campaign to alienate the children from her. This is a serious allegation, which as I discuss below, I am persuaded has not been established on the evidence. Unfortunately, the claimant heavily relies on the allegation of alienation and offers little other factual or legal arguments as to why the application should not succeed. This puts the court in a very difficult position. The sole issue is to determine what is in the children’s best interests but the claimant has not really answered the respondent’s claims. She submits the blanket statement that extra-curricular activities ought not to trump her time with the children yet she offers no views on whether the activities they are engaged in are in the children’s best interest. Nor does she offer a way to accommodate maintaining the current schedule and not diminishing the children’s participation in activities.

"[12] In relation to the application that [the respondent's wife] become a guardian to the children, the respondent says the appointment is necessary to legally recognize the fact that [the respondent's wife] provides the day to day care of the children while he works. He claims the claimant refuses to communicate with his wife, thus making their family life and decision-making difficult and cumbersome. ...

"[13] The claimant is opposed to [the respondent's wife] becoming a guardian but provides no reason other than the fact that [the respondent's wife] is not the children’s biological parent. With regard to communication, she denies she makes it difficult for [the respondent's wife] to communicate with her. At the same time, her position in court is that she is not legally required to communicate with [the respondent's wife] so the allegation that she does not communicate should not be taken into consideration."

Awesome. Unsurprisingly, the judge was lead to this conclusion in allowing the respondent's application:

"[50] This dispute is bitter. It is clear the parties are not working together well. This is tragic and does nothing to promote the well-being of their children."

A.M.D. v K.R.J.

This case was a summary trial hearing, meaning that there was no oral evidence provided by witnesses, and that all of the evidence before the judge was in affidavit format. The following comes from Justice Sharma's description of the facts of the case, with the more important bits in bold as usual:

"[30] The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability. 

"[31] I find two categories of evidence particularly troubling. The first is where one parent describes his or her observation about a single interaction of the other parent with [the child], the child’s reaction on a single occasion to something the other parent has said or done, or the child saying he was or appearing to be reluctant to want to go to the other parent’s home at the time of transfer.

"[32] The second category is the parents’ conversations with [the child] about issues in this case which are reproduced in their affidavits. It is highly inappropriate for the parties to implicate their six year old child in this dispute in any way.

"[33] It is important to note neither party takes the position that the other party is an unfit parent (except, maybe, an accusation made about the respondent’s drinking, which I will address below). Even if there was such an allegation, the type of evidence described above reveals little, if anything, unusual about either parent’s interaction with their young child in the context of shared parenting.

"[34] Instead, I find these observations are being traded in a 'tit for tat' fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance. 

"[35] I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.

"[36] I must decide what is in the child’s best interests. In that context, each party’s view of what is best for the child and the facts on which that view are based may be helpful to my decision. What is of dubious relevance and questionable reliability is a person’s observation that on one or a few occasions a parent’s interaction with the child or the child’s reaction was less than ideal. Of no relevance is what a six year old said to a parent when that parent, inappropriately, talked to the child about the legal issues in this case."

I do like that phrase, a "cyclonic battle of the affidavits." In any event, at this point, the judge discusses the claimant's allegations about the respondent's drinking habits:

"[37] The claimant states the respondent 'appears to have an issue with alcohol' and that there is an 'obvious alcohol abuse issue'. She refers, among others, to an incident in April 2013 when she believes the respondent was 'grossly intoxicated' while [the child] was in his care. She claims to have confronted him about his drinking during their marriage and says it was a huge issue in their relationship. 

"[38] The respondent 'wholly denies' any problems with alcohol. He points out he is regularly tested for drugs and alcohol for his job. There is also an affidavit from the other person present during the April 2013 incident and that person disagrees with the plaintiff’s characterization of what happened and the respondent’s state of sobriety. 

"[39] The respondent questions the sincerity of the claimant’s accusation, asking why, if she truly believes the respondent has an 'alcohol abuse' problem, she had not sought different parenting terms. Either her concerns about alcohol prior to the relocation dispute were not serious enough to take action, in which case they are not material to this application. Or, she is exaggerating the incidents and her level of concern to try gain an advantage in this application.

"[40] Taking all of these circumstances into account, I find the allegation about alcohol abuse is unfounded. The allegation is serious and should not have been made."

At the end of the day, the claimant's position was rejected by the judge while the respondent's succeeded. He must have been the least be-spattered parent.

A Few More Points

I concluded "Why It Pays to Let Bygones Be Bygones" with a list of things you can do to improve the likelihood that you'll be successful in your court case, and you can see that the folks in B.A.S. v S.R.S. and A.M.D. v K.R.J. disregarded many of them. Their cases remind me of a few other things that need to be said about courtroom disputes involving children.

First, as I said, or at least implied, in my previous post, the court is unconcerned about allegations moral unfitness or character deficiencies unless they impact on a person's capacity or ability to parent a child. No matter how much problems along these lines trouble you, do not raise them in court unless:

• you are absolutely positive that the problem impacts the other person's capacity or ability to parent your children;
• the problem is one that other people in the general community would tend to agree is a serious problem which, if true, would likely impact the other person's capacity or ability to parent; and,
• you have evidence which proves that the problem you're complaining about actually exists.

Second, if you don't have one big problem that you can identify to explain why the other person lacks the capacity or ability to parent a child ("you're always drunk" or "you smoked pot while you were breastfeeding," for example), don't try to compensate by raising a bunch of small problems instead ("he left the child in the car once when he went to buy milk," "she used a naughty word in front of our five-year-old" or "he got drunk at last year's office party and used the photocopier in an inappropriate way"). I have seen affidavits that go on at a ridiculous length, cataloging one picayune issue after another in numbing detail. I appreciate the effort that goes into preparing such material, however it's important to know that this strategy never works.

Endless complaints about small problems do not have a cumulative effect that eventually equals the impact of a big problem, tipping the scales in your favour. Instead, the court, to be blunt, is likely to see you as a bit of a whiner who is prepared to complain about anything to get your way, and the force of your complaints will get smaller and smaller with each successive complaint. Eventually the tables may wind up turning in the other parent's favour if you come to be perceived as the parent who is obstructing the post-separation care of the child!

Third, people have a weird belief in the importance and relevance of character references. I don't know where this comes from, since nothing in the Divorce Act or the Family Law Act says "the winning parent shall be the parent with the most people willing to say nice things about that parent," but there does seem to be this odd reflex to run to friends and family the moment a parenting dispute seems headed to court.

There are a few problems with this approach, apart from the rather sad likelihood that the writing of character references and letters of support will bring an abrupt end to the writer's relationship with the other parent, including these:

• letters are hearsay, they are not proof that things said in the letter are true (if someone has something really important to say, get them to write an affidavit);
• most people are able to collect a pile of letters attesting to their fine qualities as a parent, employee or pet owner, and the fact that you've got a stack of them doesn't mean you're special;
• most letters are clearly partisan, and the weight the court will give to the happy words of an ally is less than the the weight it would give to the happy words of an objective third party; and,
• letters like this generally don't talk about the negatives known to the writer ("well, she does drink every now and then, especially in the early afternoon on school days, but on the whole she's a totally awesome mom") just the positives ("Harry is the most wonderful and wise parent I have ever met and absolutely radiates compassion and patience"), which seriously undermines their credibility and utility.

If you really want to improve your chances of "success," avoid tactics like these, focus on being an attentive and involved parent, admit the strengths of the other parent and take a mature and considered approach to your family law dispute that is aimed squarely at the children's best interests and the future functioning of the separated family unit.

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.

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.

Background

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.