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

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

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

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

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

This conference is a must for anyone practicing family law or involved in family breakdown from a financial or therapeutic perspective. The full details, including the agenda, are available on CLEBC's website and CCEL's website, but here's the stuff you need to know.

Place: Pan Pacific Hotel, Vancouver BC 

Date: 12 and 13 November 2015, 9:00 am to 4:30pm both days 

CPD Credits: 12.5 hours, including 2 hours on ethics 

Pricing: Early bird registration of $1,005 ($585 for students) ends 15 October 2015. The registration fee thereafter is $1,110 ($585 students), or $990 if you want to attend by webinar.

Keynote speakers include:

• Barb MacLean, Chair of the British Columbia Council to Reduce Elder Abuse
• Isobel Mackenzie, British Columbia's Seniors Advocate
• Dr. Andrew Wister, Chair of the National Seniors Council

Panelists presenting at the conference include myself and: 

• Hon. Marion Allan, Clark Wilson
• Barbara Buchanan, Law Society of British Columbia
• Deidre Herbert, McLellan Herbert
• Anna Laing, Fasken Martineau
• Andrew MacKay, Alexander, Holburn, Beaudin and Lang
• Catherine Romanko, British Columbia Public Guardian and Trustee
• Kimberly Whaley, Whaley Estate Litigation
• Geoffrey White, Geoffrey W. White Law Corporation

The topics to be addressed include:

• Advance health care planning
• Whether a national power of attorney registry would help reduce elder financial abuse
• Update on guardianship law in British Columbia
• Reporting and responding to suspected elder abuse
• Physician assisted suicide and health care decision-making
• Later-in-life separation and divorce
• Dementia and client competency
• Class action litigation in elder and estate law

Save these dates and head on over to CLEBC's website to register now. Space is limited.

Bill Amending Family Law Act Tabled

On 3 March 2014, Minister of Justice Suzanne Anton tabled Bill 14, which, if passed, will become the Justice Statutes Amendment Act, 2014. The bill contains a number of amendments to the legislation on family law matters in British Columbia: the Adult Guardianship Act, the new Family Law Act, the Family Maintenance Enforcement Act, the Interjurisdictional Support Orders Act, the Public Guardian and Trustee Act and the new Wills, Estates and Succession Act when it comes into force. In this post, I will briefly outline the amendments to the Family Law Act.

Trust Property

Sections 11, 12 and 13 of the bill are designed to clear up certain problems relating to the status of trust property. The amendments make it clear that a spouse's beneficial interest in property, as well as property bought using the spouse's beneficial interest, is presumed to be family property to be divided between the spouses. However, if the beneficial interest concerns property held in a discretionary trust (a trust in which the distribution of property and to whom it will distributed is decided by the trustee, not the beneficiaries or the person who created the trust) and the spouse did not contribute to or create the trust, the beneficial interest is excluded from the pool of family assets to be divided.

Gifts

Section 13 of the bill would amend the act to make it clear that the only gifts that are excluded from the pool of family property to be divided are gifts from third parties. This is really important, because the way the Family Law Act currently reads, gifts between spouses are excluded from the pool of family property, and spouses often make decisions about how property is owned for tax reasons, to protect the property from creditors and to plan the distribution of their estates

Foreign Property

Sections 14, 15, 16 and 17 of the bill go some way toward cleaning up the extraordinarily incomprehensible provisions of the Family Law Act on property located outside of British Columbia that is, or might be, family property. These provisions are found in Division 6 of Part 5 and are horrifically complicated, and as a result I won't say more about it. I have written a paper on the foreign property provisions of the act which may be available from the Continuing Legal Education Society of BC.

Protection Orders

Sections 18 and 29 of the bill, would add the Criminal Code definitions of "firearm" and "weapon" to the definitions for Part 8 of the Family Law Act, the part that deals with protections orders, and clarify that a protection order can not only prohibit someone from possessing firearms and weapons, but also the licences, certificates, authorizations and whatnot relating to the firearms and weapons. A protection order can also prohibit someone from possessing "a specified object."

Consolidation of Multiple Proceedings

Section 20 of the bill makes it clear that the court can join two or more proceedings together. This will be most useful when there is a proceeding between two parents about parenting time, for example, and a relative starts a separate proceeding seeking contact with the same child. Since any order made in the second proceeding would impact on the order made in the first proceeding, a party could apply for an order that both proceedings be joined and dealt with together.

Needs of the Child Assessments

Sections 21 and 23 of the bill, would amend the Family Law Act provisions on needs of the child assessments, formerly called custody and access reports, so that only particular people with particular training and experience — to be established by regulation — are able to conduct needs of the child assessments.

Failure to Pay Child Support may Constitute "Family Violence" under the Family Law Act

In the recent decision of J.C.P. v J.B. the Provincial Court has characterized as person's failure to "pay child support on time and in the full amount" as "family violence" within the meaning of s. 1 of the Family Law Act, and then applied this finding to determine the appropriate arrangements for the care of the parties' child. This decision continues a trend toward the broad interpretation of "family violence" I last remarked on in my discussion of M.W.B. v A.R.B. in my post "Litigation Conduct may Constitute 'Family Violence' under the Family Law Act."

In J.C.P., Judge Merrick was asked to determine a range of issues including child support, parenting arrangements for a four-year-old and whether family violence had occurred. Each of the parents made allegations of physical and sexual violence against each other, with the conflict in the evidence provided which is commonplace when such claims are raised, such that the court could not determine what had actually happened. The court was, however, able to conclude that the father had committed family violence as a result of a combination of his failure to pay the full amount of child support owing and his other behaviour. 

Before getting to the case, a quick review of the meaning of family violence will help to explain where the judge was coming from. This is the definition found at s. 1 of the new act:

"family violence" includes

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, 

(b) sexual abuse of a family member, 

(c) attempts to physically or sexually abuse a family member, 

(d) psychological or emotional abuse of a family member, including 

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, 

(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, 

(iii) stalking or following of the family member, and 

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

As you can see, this definition is very broad and can include inflicting psychological harm and restricting funds. Now let's look at Judge Merrick's decision (important bits in bold):

"[15] With respect to [the father's] failure to pay child support on time and in the full amount, I am satisfied that this failure, combined with his other actions and words, constitutes family violence. I am satisfied that his failure to pay was a calculated and deliberate act designed to inflict psychological and emotional harm and to control [the mother's] behaviour. I am satisfied that [the father's] goal was to destabilize [the mother's] parenting of [the child]. 

"[16] I have come to this conclusion based on the following:

(a) [the father's] repeated failures to pay monthly child support, as ordered, for more than a year despite having an ability to do so; 

(b) [the father's] communication to [the mother] that other than child support, what could he do to assist her in parenting [the child]; 

(c) [the father's] actions in placing $20 in [the child's] backpack which went back and forth with [the child] as if it was some form of an allowance for [the mother]; 

(d) [the father's] view that child support was not due on the 1st of the month, as ordered by the court, and that he could choose to pay it within the month and whenever he chose to within the month; 

(e) [the father's] initial reluctance to contribute to the cost of [the child's] required dental care; and 

(f) [the father's] steadfast refusal to pay child support despite the considerable number of urgings and the explanation by the court as to the importance of child support.

"[17] While it is true that, recently, [the father] has been fulfilling his obligation to support [the child], I have concluded, based on the repeated urgings of the court and the repeated warnings to [the father] about the provisions of [the extraordinary enforcement remedies] of the Family Law Act, that his recent compliance is due to the fact that he reasonably believed he would be imprisoned if he did not pay child support in accordance with the court order. 

"[18] While I am of the view that the failure to pay child support will not often constitute an act of family violence, when the failure is the result of a determined decision not to pay, knowing the impact it would have on [the mother], who had limited income, and my rejection of [the father's] explanation for failing to pay, I have concluded that this was designed to inflict psychological and emotional trauma to [the mother] and is therefore an act of family violence. 

"[19] I am also of the view that this has impacted [the child's] well-being and that [the father's] ability to care for [the child] is impaired. 

"[20] [The father] used a secret surveillance camera to record a parenting time exchange and then used those images in court to show how well the exchange went. [The father's] submitted that he did this to rebut any suggestion that a third party was required at the exchanges. If this was, in fact, the case, however, why would he not have advised [the mother] of that? The use of the images in court created a real concern for [the mother] as to what else has been secretly recorded. I am of the view that the use of the images in court was designed to inflict emotional trauma on [the mother] This does raise concerns about the appropriateness of an arrangement that would require the parties to cooperate. 

"[21] Finally, I agree that [the father's] recent breakfast invitation to [the mother] in [the child's] presence, without prior notice to [the mother], was designed to be coercive and controlling behaviour. [The father] knew that if he had asked [the mother] in advance, [the mother] would likely have declined the invitation. This, too, demonstrates that [the father's] ability to care for [the child] is impaired. In [the child's] presence, [the mother] had no choice but to agree. 

"[22] [The father] suggested that this showed that he and [the mother] could act as a family. It was controlling behaviour which, in the context of all of the evidence in this case, demonstrates [the father's] poor decision-making in matters relating to [the child]."

After determining that the father's behaviour constituted family violence and that the violence impaired the father's ability to care for the child, the court then concluded that:

1. the parties would share decision-making authority on matters related to the child's social upbringing, giving or refusing consent for medical treatments and the receipt of information related to the child's health and education;
2. the mother would have sole decision-making authority for determining where the child would live, extracurricular activities, passports and licences, the child's legal interests and the child's financial interests, as well as "any other responsibilities reasonably necessary to nurture" the child's development; and,
3. the father would have parenting time with the child on a schedule more or less as proposed by the mother, which included plans for overnights and holidays.

If there are lessons to be drawn from this case, and I suggest there are, they are these.

First, the courts take a very dim view of any sort of manipulative behaviour that can be characterized as falling into the very, very broad scope offered by the definition of family violence at s. 1 of the act. This certainly includes efforts to control someone's life by playing around with child support. I have seen this sort of petty, juvenile behaviour far too often, usually by male payors of support who feel pissed off and aggrieved that they have to pay money to their ex and fail to understand that the money is actually being paid for the benefit of their children. Here are the some of the rules.

Child support is almost always due at the beginning of the month. If it's due at another time, the order or agreement will say so. You don't have the right to delay your payments because you're mad at the other parent or for any other reason.

Speaking of orders and agreements, you don't have to have an order or an agreement to pay child support to have to pay child support. You are liable to pay for the support of your children the moment you separate and you stop paying for common expenses.

You do not have the right to withhold or shortchange a payment for revenge because you haven't seen the children, because you are short of cash or for any other reason.

Second, the sort of scheming behaviour some people engage in, intended to show the weak points of the other parent, is rarely effective. More often than not, the surreptitious taping or recording of events makes the person doing the taping or recording look far worse than the person being taped or recorded. The court does not appreciate this sort of thing, especially when it is clear that what is being taped or recorded is actually a set up or has been provoked.

Let me wrap this up with one more quote from the decision:

"[49] For the reasons I have given, I am of the view that [the father] needs to change his behaviour. The family violence must stop. There must be increased cooperation. Conflict must be minimized. This is an example of the type of conflict and criticism that must stop. At the conclusion of this case, [the father] submitted, 'I maintain and present that what the sum of the evidence shows is that there was an intention to run the clock as long as possible to make me have as many mistakes, to reduce and imperil, even with the most serious complaints, completely imperil my relationship and the ability to have a relationship, a fulfilling relationship, a complete parental involvement with [the child]'.

"[50] I do not agree that there is any evidence to support that what occurred here was the 'running of the clock'. I think this is again but one illustration of the conflict and criticism that must end. 

"[51] Therefore, pursuant to s. 199(1)(b) of the Family Law Act, [the father] shall attend, participate in, and successfully complete counselling, including psychological counselling and parenting courses, and provide proof of his attendance at counselling. Such proof must be filed no later than 3 p.m., May 31, 2014, at the court registry in North Vancouver."

My thanks to my colleague Laura Track for bringing this case to my attention.

The Essential Case Law on the Family Law Act to Date

The Family Law Act has been law in British Columbia for seven months now, and, as regular readers of my blog will know, the courts have released a number of critical decisions interpreting and applying the new legislation. Here is a list of the cases that I think are among the most important, and the main subjects addressed by each case.

The numbers and letters after the name of each case is the legal citation for that case. ("2013" is the year in which the decision was published, "BCPC" or "BCSC" means the British Columbia Provincial Court or the British Columbia Supreme Court, and the last number is the number of the decision among all of the decisions released by the court that year.) You can use the citation to find the case on CanLII if the hyperlinks stop working for some reason.

Child Support 

S.M.L. v R.X.R., 2013 BCPC 123: basic principles regarding child support under the old Family Relations Act continue to apply under the new act except that there are new grounds to vary a child support order 

M.A. v. F.A., 2013 BCSC 1077: when a minor child will be considered to have "voluntarily withdrawn" from the care of his or her guardians for the purposes of child support

Children: Best Interests 

Hadjioannou v Hadjioannou, 2013 BCSC 1682: the best interests of children are determined by a review of the facts and each of the factors listed in s. 37(2) of the new act 

G.B. v L.A.P., 2013 BCSC 1490: the best interests of children are determined by a review of the facts and each of the factors listed in s. 37(2) of the new act 

Children: Guardianship 

D.Q.L. v W.D.H., 2013 BCSC 1291: the rights and responsibilities of guardians under the act are enough for guardians to care for the child and an interim order under the Divorce Act may not be necessary 

Rashtian v Baragoush, 2013 BCSC 994: orders for custody under the Divorce Act may supplemented for orders for the distribution of parental responsibilities under the new act 

Van Kooten v More, 2013 BCSC 1076: the Joyce model of guardianship adapted for the new act 

G.P. v M.J.R.P., 2013 BCSC 746: the Joyce model of guardianship adapted for the new act 

C.K.B.M. v G.M., 2013 BCSC 836: the Joyce model of guardianship adapted for custody orders under the Divorce Act 

Hansen v Mantei-Hansen, 2013 BCCS 876: the Joyce model of guardianship adapted for custody orders under the Divorce Act 

Children: Guardianship Applications 

J.L.M. v. G.A.T., 2013 BCPC 96: Provincial Court may make orders declaring a person to be a guardian of a child 

T.C. v S.C., 2013 BCPC 217: parent may be made a guardian on an interim basis but must file required affidavit within 60 days 

Director and L.M.P., L.M.P. v K.P. and others, 2013 BCPC 206: the sort of criminal records check required of persons applying to be appointed as the guardian of a child 

S.T.H. v R.M.G., 2013 BCPC 114: new act does not allow applications for "sole guardianship," such applications are applications to remove a person as the guardian of a child 

D. v D., 2013 BCPC 135: a person should not be removed as the guardian of a child except in extreme circumstances 

Children: Relocation Applications 

Berry v Berry, 2013 BCSC 1095: the degree of impact necessary for a move to qualify as a "relocation" under s. 65 of the new act 

T.C. v S.C., 2013 BCPC 217: parent may be made a guardian on an interim basis to provide parent with standing to object to relocation 

T.C. v S.C., 2013 BCPC 217: one of two critical cases on relocation, the analysis of "good faith" under s. 69, and the analysis the court must undertake in deciding whether to allow or refuse an application to relocate 

L.J.R. v S.W.R., 2013 BCSC 1344: second of two critical cases on relocation and the analysis the court must undertake in deciding whether to allow or refuse an application to relocate 

M.K.A. v A.F.W., 2013 BCSC 1415: the amount of time a guardian must have with a child to be "substantially equal" time under s. 69 for the purposes of relocation applications 

S.B. v N.L., 2013 BCPC 233: what happens when someone opposing a relocation fails to object within the thirty days allowed; the degree of proof required to establish delivery of a notice of relocation 

Court Procedure 

J.L.M. v. G.A.T., 2013 BCPC 96: Provincial Court may make orders declaring a person to be a guardian of a child 

J.D.G. v J.J.V., 2013 BCSC 1274: the availability of fines under s. 213 of the new act when someone fails to produce a financial statement with the deadlines set out in the Rules of Court 

M.J.S. v A.D., 2013 BCPC 230: the availability of orders under s. 221 for fines and prohibiting a party from making further applications without leave; applications for intervenor status in family law proceedings 

Division of Property and Debt 

Reynolds v Huard, 2013 BCSC 1251: unmarried spouses cannot add property claims under the new act if they are not within the two year time limit set out in s. 198 of the new act 

Asselin v Roy, 2013 BCSC 1681: the first case on the division of family property and family debt under the new act 

Divorce Act 

D.Q.L. v W.D.H., 2013 BCSC 1291: the rights and responsibilities of guardians under the act are enough for guardians to care for the child and an interim order under the Divorce Act may not be necessary 

Hansen v Mantei-Hansen, 2013 BCCS 876: relationship between orders for the care of children under the new act and the Divorce Act; when orders must be made under the Divorce Act 

Rashtian v Baragoush, 2013 BCSC 994: orders for custody under the Divorce Act may supplemented for orders for the distribution of parental responsibilities under the new act 

Family Violence 

M.W.B. v A.R.B., 2013 BCSC 885: a party's conduct of a court proceeding may amount to family violence 

D.J.K. v J.J.K., 2013 BCPC 223: "family member" for the purposes of protection orders includes a parent's adult child 

N.P. v I.V., 2013 BCSC 1323: factors in making protection order 

L.M. v L.S., 2013 BCSC 796: factors in making protection order

I have written more extensively about many of these decisions elsewhere in this blog; click the "Family Law Act" label below to find them.

New Limitation Act in Force

The new provincial Limitation Act came into force on 1 June 2013, repealing and replacing the old Limitation Act. The new act has some important consequences for family law matters; read on.

The Limitation Act is an important law that sets the deadlines, called "limitation periods," by which particular claims must be made in court before they expire. After the limitation period for a claim, the claim can no longer be brought.

The new Limitation Act doesn't apply to certain claims, including:

• certain claims for the possession of land;
• claims relating to property provided as collateral for a debt or obligation;
• claims relating to sexual assault; and
• claims relating to assault if the assault happened when the claimant was a minor.

Most importantly, from a family law point of view, the act doesn't apply to claims for assault in circumstances of family violence or to claims for arrears of child support or spousal support, whether the arrears came from an order or an agreement. Claims like these can be brought at any time, without limitation.

Under s. 6, the general limitation period for claims covered by the act is 2 years. Section 7 has a special rule for claims to enforce money judgments or claims for the return of personal property. These claims must be brought within 10 years.

Limitation periods begin on the day when the claim is "discovered." In other words, the clock starts to tick on the day the claimant realizes that a claim could be made. Under s. 8, a claim is discovered when the claimant knows, or ought to know, all of the following:

1. that injury, loss or damage had occurred;
2. that the injury, loss or damage was caused by or contributed to by an act or omission;
3. that the act or omission was that of the person against whom the claim is or may be made;
4. that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

The act provides special discovery rules for certain people, including principals, agents, minors and persons under a legal disability, and for certain claims, including claims based on fraud, claims for the recovery of trust property and claims relating to demand obligations like promissory notes. Other special rules are provided that extend limitation periods in certain circumstances, such as when the person against whom a claim could be made acknowledges liability or if the claimant becomes legally disabled.

Despite these special rules, s. 21(1) provides an ultimate limitation period of 15 years beginning on the dates described in subsections (2) and (3).

The act's transitional provisions have not been reproduced in the version posted on the BC Laws website. For that, you'll have to dig through the third reading bills posted on the website of the Legislative Assembly to find Bill 34 from the 4th session of the 39th parliament.

Read the Ministry of Justice's press release on the coming into force of the new act.

Litigation Conduct may Constitute "Family Violence" under the Family Law Act

In the recently-released decision in M.W.B. v. A.R.B., the Supreme Court has characterized a party's approach to the litigation with her husband as "family violence" within the meaning of s. 1 of the Family Law Act, and taken the violence into account, as the court must when family violence is present, in assessing the best interests of the parties' child under s. 37 of the act. To properly understand the court's reasoning you must read the decision itself. I will try, however, to provide the highlights.

The issues before the court involved applications by each party brought about a year and a half after the trial decision. It is clear from the decision that the parties had been engaged in an extraordinary degree of conflict long before trial. (Although costs are unreliably awarded in family law cases, they will be awarded where the court wishes to signal its disapproval of a party's conduct. In this case, the trial resulted in the husband being awarded costs, special costs and a penalty under s. 92 of the old Family Relations Act for the wife's failure to make property disclosure of her finances!) This continued after trial, largely, it would seem, manifested in the wife's obstructionist attitude toward carrying out her obligations from the trial judgment. The court summarized the wife's conduct as follows:

[7] Pointing to the Respondent’s obstructive and grossly negligent conduct leading up to the January 2013 sale of the parties’ jointly owned commercial property, the Claimant seeks financial compensation or a further reapportionment under s. 66(2)(c) of the FRA. Her conduct has caused the parties to suffer a large loss of equity in the jointly owned family asset... 

[10] The high-conflict divorce trial took place about two and a half years ago ... in August 2011. The parties represented themselves. The orders made following the trial were aimed at stabilizing the parties’ finances, reducing conflict, regularizing parental access and, overall, to help the parties move forward. Those objectives were not realized as the Respondent’s conduct worsened the parties’ financial circumstances and conflict continued. 

[11] Following trial, the parties engaged the Court in four additional proceedings, all driven by the Respondent’s refusal to settle orders and costs in a reasonable way, her interference with the Claimant’s access and her obstruction of the sale of the commercial property. 

[12] The resulting litigation-related stress generated by the Respondent has caused the Claimant time, trouble and expense that in turn have contributed to a significant medical issue.

The rest of the rather lengthy decision expands on each of these concerns in much more detail. In any event, the primary issue before the court, was the husband's application to have the primary residence of one the parties' two children transferred to him, which would result in the child's relocation from the eastern side of the province to live with him on the western side of the province.

In analyzing this aspect of the application, the court first commented that the trial had been held when the Family Relations Act was in force, that by the time of the hearing, the old act had been repealed and replaced by the Family Law Act and that it was the new act which therefore applied to the application.

The court then observed that under s. 37 of the new act, the best interests of the children are the only factor to be taken into account and that "this principle applies to all existing child custody questions." The judge further observed that s. 37 requires a consideration of family violence, and that where family violence is present, the court must consider the additional factors set out at s. 38. This is where things get interesting.

First, the court reviewed the definition of family violence at s. 1 of the act. These are the parts of the definition which the court considered to be the most relevant to the case, as emphasized by the judge:

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, 

(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, ... 

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

Second, applying these factors to the facts of the case, the court reached the following conclusions:

[199] I find the [wife's] litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence. 

[200] The [wife's] conduct and needless litigation has forced the [husband] to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources. ...

[204] The best interests of children suffer when abusive oppositional behaviour and litigation fomented by one parent’s conduct harms the health and financial well-being of the other parent. This in turn harms the children’s economic safety and security. 

[205] Further, the [wife's] reckless and oppositional behaviour connected with the commercial property has damaged the children’s safety, and economic security. It effectively deprived them of receiving any benefit from sale of the property, endangered the [husband's] capacity to support the children and consumed money the [husband] could have used for a greater number of parent time visits. The [wife] knew her delaying and oppositional conduct harmed the [husband's] capacity to pay the cost of access visits. 

[206] If a parent’s abusive conduct harms the well-being of the other parent to the extent they may have to go on stress leave, this negatively impacts the child’s economic security. ... 

[208] The Respondent knew or ought to have known the impact her conduct was having on the Claimant’s financial situation; the Claimant made it clear to her. From this, I infer the Respondent is prepared to let her anger at the Claimant influence her to act in a way that indirectly harms the best interests of the children. I find the Claimant will not conduct himself in that way; the litigation history proves otherwise. 

[209] In summary, I find that the Respondent has directed violence at the Claimant that has indirectly harmed the children’s psychological and emotional well-being and economic security. ...

Finally, the court analyzed each of the s. 37 factors in detail to reach the ultimate decision that the child should move and live with the husband:

[260] As matters stand, having considered and now applying s. 37 of the [Family Law Act], ss. 8 - 11 of the [Divorce Act], the authorities, and all the evidence, I find that an order varying the custody order to designate the [husband] a principal residence caregiver is strongly in [the child's] best interests. I order accordingly...

In my view, there are two important points to be drawn from this remarkable decision.

Most importantly, in assessing the best interests of the child, each of the best interests factors set out in s. 37(2) must be considered individually. This step-by-step approach is critical because the factors are prefaced by this statement: "to determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following." Since each of the factors "must" be considered, the take-away message for lawyers and litigants is that you must provide the court with evidence on each of the s. 37(2) factors when making an application concerning children. For ease of reference they are:

(a) the child's health and emotional well-being; 

(b) the child's views, unless it would be inappropriate to consider them; 

(c) the nature and strength of the relationships between the child and significant persons in the child's life; 

(d) the history of the child's care;  

(e) the child's need for stability, given the child's age and stage of development; 

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; 

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; 

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; 

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; 

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

The other point is that the Family Law Act appears to have introduced at least three mechanisms to address misconduct in the litigation process, in addition to the existing provisions for frivolous and vexatious litigants set out at s. 18 of the Supreme Court Act.

1. either court may make an order prohibiting someone from taking further steps in a case where the party has made an application that is trivial, is conducting the case in a manner that is a misuse of the court process or is otherwise "acting in a manner that frustrates or misuses the court process," under s. 221 of the act;
2. either court may strike all or part of a claim or application or adjourn a proceeding until an order is complied with, under s. 223; and,
3. following the reasoning in this case, either court may also determine that a party's conduct is "a form of emotional abuse and harassment that constitute a form of family violence" under s. 1, which may be taken into account in determined a child's best interests and, of course, in making a protection order under s. 183. See the interesting discussion of "court harassment" provided by the Legal Services Society.

My thanks, as always, to Agnes Huang, who has never gone by Wong, for bringing this interesting case to my attention.

Guide for Victims of Family Violence Published by UBC Centre for Feminist Legal Studies

The Centre for Feminist Legal Studies at the UBC Faculty of Law has just published a helpful new paper, The BC Family Law Act: A Plain Language Guide for Women Who Have Experienced Abuse (PDF). According to the paper's introductory comments, the paper deals with family violence as it is addressed by the Family Law Act and

"...was written for women who are leaving or thinking about leaving a relationship with an abusive man and need information on family law problems. However, the information in this  guide applies to a marriage-like relationship between any two people, for example, two people in a same sex relationship."