Why the Family Law Act Should Be a Complete Code

A fog of uncertainty and conflicting cases continues to trouble the new Family Law Act. The confusion is understandable, given that barely two years have elapsed since the act came fully into force and that the Court of Appeal has yet to pronounce upon the key areas of controversy, but nonetheless highlights critical access to justice issues that went unobserved and unnoticed under the previous legislative regime which thirty years' of case law had fully explored.

One of these key areas concerns the status of gifts received by spouses and whether such gifts are divisible family property or are excluded from sharing. Under s. 85(1)(b.1) of the act, "gifts to a spouse from a third party" are excluded from the pool of family property that is divided between spouses. However, controversy has arisen as to whether this seemly simple statement captures all gifts to a spouse such that the common law presumption of advancement no longer applies.

(The "common law" is the English legal system in which judges build the law as they decide each case, and is the legal system everywhere in Canada except Quebec. The "presumption of advancement" is a principle of the common law that when a spouse or a parent transfer property to a spouse or a child, the transfer is a gift. The presumption can usually be avoided if the spouse or parent can prove that the transfer was a loan or otherwise show that there was no intention to make a gift. The presumption of advancement is written into the Family Law Act.)

In Remmem v Remmem, Mr. Justice Butler decided that the presumption of advancement no longer applies in British Columbia because the Family Law Act is "intended to be a complete code so that there is no need to examine the intention of the parties." Moreover, if the presumption did apply, the presumption would: require that unmarried spouses be treated differently than married spouses, as the presumption only operates between married spouses; and, undermine the "apparent simplicity and certainty of the property division scheme."

On the other hand, Mr. Justice Masuhara, writing in Wells v Campbell, observed that the act fails to explicitly extinguish the presumption of advancement or otherwise alter the law on perfected inter vivos gifts, and applied the presumption. A similar result was found by Mr. Justice Walker in V.J.F. v S.K.W., who further noted the unfortunate provisions of s. 104(2) of the act,

"The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law,"

and likewise applied the presumption. I've discussed all three of these cases more fully in my post "Dividing Property under the FLA."

The different conclusions reached in these cases reflects more than a disagreement between judges; they reflect two of the fundamental barriers to accessible justice created by our legislation on family law.

Firstly, nothing in the Family Law Act tells the reader that she must look anywhere other than the act to understand her right to share in the property accumulating during her relationship. Nothing in the act hints that the presumption of advancement exists, never mind the other common law principles like the presumptions of gift and resulting trust, the doctrine of unjust enrichment or the constructive trust. How would someone leaving a relationship ever come to the conclusion that she needed to look anywhere other than the legislation on the division of family property to figure out her and her spouse’s rights? What would make her even suspect that there might be other rules to consider than those set out in the act?

Secondly, by injecting the principles of the common law into the division of family property, the certainty created by the Family Law Act – such as it is – is substantially undermined. Vagueness in legislation has a number of negative effects in family law matters: it makes the results of disputes indeterminate and potentially unknowable; it broadens the range of likely outcomes; in broadening the range of outcomes, it does nothing to limit spouses’ hopes and expectations about the result of their cases; and, in failing to limit spouses’ expectations, it promotes conflict.

I have written elsewhere about the need for legislation on family law to be clearly written and comprehensible to the average reader. I have also written about how legislation on family law that fails to limit the range of likely outcomes encourages a single-serving approach to justice that, in serving the individual well, creates uncertainty and a muddled body of case law for everyone else. I’ve also written about the how the chances of settlement improve when individuals’ expectations as to outcome lie within the range of likely results and how the chances of settlement correspondingly diminish when litigants have unrealistically high expectations, and will say no more on the matter.

In my view, Mr. Justice Butler’s approach to the Family Law Act, although undermined by s. 104(2), is much to be preferred in the context of family law disputes. If I had my druthers, the legislation on family law would indeed be a complete code, to both enhance access to family justice and dampen conflict by constraining parties’ expectations.

It seems to me that there are at least three principles that should be applied to the design and drafting of legislation on family law subjects if access to justice is a goal worth pursuing:

1. The legislation on family law should be written as clearly and concisely as possible. The average person, possessed of average intellect and average literacy, ought not be required to retain counsel to read and understand the legislation applicable to her circumstances. Family justice is inaccessible when the governing legislation is incomprehensible.

2. The legislation on family law should be exhaustive of the subject matter it purports to address. It is not unreasonable for an individual to expect that reading the legislation on the division of family property would provide all of the information relevant to the division of family property. Family justice is inaccessible when critical sources of law exist parallel to and unacknowledged by the governing legislation.

3. The legislation on family law should provide certainty as to the results of proceedings commenced under that legislation. People reading the legislation should be able to understand how the legislation applies to their circumstances and predict the likely outcome of proceedings under that legislation. Family justice is inaccessible when the result of the application of the governing legislation is indeterminate.

Much of the present efforts toward justice reform is focused on improving public legal education, redesigning justice processes and integrating social services within justice processes. These efforts necessarily contemplate revision of the rules of court, but there are more fundamental rules that must also be considered. Reform of the legislation on domestic relations must not be overlooked as we work to improve the accessibility of family justice.

It seems to me that the Family Law Act, and access to family justice for British Columbians, would be greatly improved if s. 104(2) was amended to limit the application of other laws to the relevant legislation of British Columbia, like the Land Title Act or the Partition of Property Act, and to expressly extinguish the application of common law principles to the rules about family property and excluded property under the act.

A version of this post was originally published in the legal news magazine Slaw on 15 May 2015.

Quickscribe 2.0: Legislation service training session coming up, register now

Quickscribe Services is offering a free lunch-and-learn training session on its excellent legislation tracking and research service, Quickscribe 2.0, which I've written about elsewhere. The session qualifies for one CPD credit  a will be held by webinar at noon on Wednesday 14 January 2015.

Quickscribe 2.0 offers access to all provincial, and some federal, legislation and regulations, without point-in-time capabilities, tracking of pending and in-force amendments and speedy consolidations. Public annotations are provided by leading practitioners; users can also make private annotations available only to themselves or only within a firm. The service features a cool tracking feature that will alert you to amendments and new annotations.

Although Quickscribe 1.0 was perhaps not as helpful as it could have been for family law practitioners, I have found Quickscribe 2.0 to be a handy research aid and surprisingly useful. You can take a slideshow-style tour of Quickscribe 2.0 or request a free trial.

Register for the training session on Eventbrite.

Quickscribe 2.0 Launched!: Important New Tool for Family Law Counsel

Quickscribe Services has just launched the long-awaited Quickscribe 2.0, which offers a boatload of useful new features and is a genuine and substantive improvement on 1.0.

The original version of Quickscribe was known for its legislation tracking service, which offered speedy updates to the provincial legislation and the more frequently accessed federal legislation, historical point-in-time tracking, and information about the status of bills, new regulations and new orders in council. Quickscribe was also much easier to use than the BC Laws and Legislative Assembly websites, and subscribers were able to program a variety of automatic alerts customized to the needs of their particular practice.

The new version continues these services and also offers:

• some pretty slick PDF capabilities, letting you print or save to file all or some of a document;
• an expert annotation service provided by leading practitioners;
• an improved tracking and alert system, which will alert users to new annotations in addition to legislative amendments; and,
• a collaborative annotation function that lets users build a database of annotations shared with a firm.

Quickscribe 1.0 likely would not have been particularly useful for family law practitioners, particularly when the Family Relations Act was the law of the land; we had two key statutes and one critical regulation to keep on top of, and rarely found ourselves needing point-in-time references to the Land (Spouse Protection) Act or the Fraudulent Conveyance Act. I had access to the system for a whole year, and maybe used it once. I'm sure 1.0 was an indispensable tool for general civil litigators, just not so much for members of the family law bar.

I've had the chance to browse around 2.0, however, and it seems to me that the new version will make a very useful addition to the family law lawyer's tool box. First, Quickscribe is likely the only way you're going to get your hands on a complete electronic copy of the Family Law Act without having to jump between parts. Second, the case law is developing at such a rapid pace, that you need a way of faster way keeping up with developments than waiting for the next practice manual or white book; users' ability to make public annotations could give us an extraordinarily useful resource. Third, a number amendments have already been made to the act, and more are in the pipeline, that we need to keep on top of — it's reasonable to assume that still more amendments will be made in the months and years ahead as further wrinkles in the new act are discovered.

A slideshow-style tour of Quickscribe 2.0 is available, as well as a free but time-limited trial subscription. Quickscribe is a web-based application, which means that it works on both Macs and PCs, and you won't need to download or install any software.

If I Were Tyrant: Three Changes I Would Make to the Legislation on Family Law

In response to my recent post on the unlamented defeat of Bill C-560, a reader asked:

"So if not this bill then what? What improvements would you like to see the federal / provincial government make?"

Although the question presupposes that the bill was intended to address an actual need, it raises a interesting though ultimately vainglorious and egocentric point. What would I do to improve the federal and provincial legislation on family law?

1. Get the federal government out of the corollary relief business.

The Constitution Act, 1867 is Canada's main constitutional document and, among other things, divides the powers involved in running a country between the federal government and the provincial governments. Under s. 91, the federal government has the power to make laws about marriage and divorce. Under s. 92, the provincial governments have the power to make laws about property, civil rights and "Generally all Matters of a merely local or private Nature in the Province."

Even though the federal government could make laws about divorce, it didn't bother doing so until 1968, by which time all of the provinces and territories had developed a good set of laws dealing with things like:

• the legitimacy of children and establishing their paternity,
• parenting arrangements after separation, 
• child support, spousal support and parental support, and
• the division of matrimonial property.

In passing the first Divorce Act, the federal government decided to include rules about parenting arrangements, child support and spousal support, partly because that's what they were doing in England and partly because these issues were thought to be "necessarily connected" to divorce. Of course, at the time hardly anyone was living in sin. If you were living together, you were married.

Today's Divorce Act still talks about the care of children, which it discusses in term of custody and access, and about child support and spousal support.  It also has rules about divorce orders, when the court has jurisdiction to make divorce orders, when divorce orders take effect, appeals of divorce orders and the recognition of foreign divorce orders.

I don't have a problem with the parts of the act about divorce, of course, but I do have a problem with the rest of it.

First, the Divorce Act only applies to people who are or used to be married to each other. This creates a two-tiered system of laws, with one set (the provincial laws) applying to everyone and another (the Divorce Act) applying only to married couples. The Divorce Act has subtly different rules that distinguish it from provincial legislation, including on variation applications, how people qualify as stepparents and when people other than spouses can ask for orders about children.

Second, the Divorce Act's language of "custody" and "access" doesn't mesh terribly well with the laws of provinces which have adopted more progressive terminology and concepts, like those of Alberta and British Columbia that talk about the care of children in terms of guardians who have parental responsibilities and parenting time, and people who are not guardians who have contact. There is a serious legal debate about guardianship and custody and whether all of the rights involved in guardianship are exhausted by orders about custody or vice versa, besides which the use of two different legal concepts to describe the rights of parents is ridiculously confusing and unnecessary. Quite apart from all of that, why should the provinces' ability to reform family law be at the mercy of the legislative agenda of the federal government?

Thirdly, the Divorce Act doesn't talk about property. This means you have provincial laws that deal with everything involved when a couple splits up and a federal law that deals only with some things. This is confusing and counterintuitive to say the least.

Fourthly, provincial courts generally don't have jurisdiction to make orders under the Divorce Act, including orders about children and divorce, while the provinces' superior courts can make orders under both the Divorce Act and the provincial legislation. Since the provincial courts are generally cheaper to make claims in than the superior courts, and their rules are generally much simpler and written in much plainer language, you often have people starting claims in the provincial court, only to find themselves: getting bumped to the superior court; dealing with orders on the same subject from different courts, couched in different language and possibly on conflicting terms; or having one proceeding in each court dealing with different legal issues.

It really would be so much simpler if the federal government simply got out of the business of custody, access, child support and spousal support, left those issues to the provinces and territories to deal with, and stuck with it's basic constitutional mandate on divorce.

2. Do something about the Spousal Support Advisory Guidelines.

The Spousal Support Advisory Guidelines is a paper prepared by two very well qualified law professors, Rollie Thompson from Dalhousie and Carol Rogerson from the University of Toronto, at the commission of the federal government. Their purpose was to see whether they could come up with a set of rules to guide judges and spouses in making orders and agreements about spousal support, and the Advisory Guidelines is the result. 

As it happens, I found myself generally agreeing with the results the Advisory Guidelines gave for the amount of spousal support payments, although I felt that the results for the length of time during which support should be paid were sometimes too long. The courts liked the Advisory Guidelines too, and over time more and more orders began to be made explicitly referring to the results produced by the Advisory Guidelines.

Professors Thompson and Rogerson never expected that the Advisory Guidelines would become a law, they thought that the Advisory Guidelines would infiltrate the world of family law and be adopted through custom of use. (I'm putting words in their mouths of course.) Sure enough they were right. Although the courts of Alberta have put up a fight, the Advisory Guidelines are regularly used to decided spousal support claims across Canada, and the Court of Appeal for British Columbia has even decided that it is an appealable error for a trial judge not to consider the results of the Advisory Guidelines!

But here's the rub.

First, the Advisory Guidelines are maddeningly vague in places. This is by design; the authors wanted to ensure that spouses and the courts had an abundance of discretion in deciding how the Advisory Guidelines would be applied. (I should know, I wrote a paper called "Obtaining Reliable and Repeatable SSAG Calculations" for the federal government and had lots of chats with Carol and Rollie about these peculiarities.) However, the odd spot of ambiguity has left a lot of people, and a lot of lawyers, scratching their heads when unusual circumstances arise, and from my point of view these ambiguities seriously undermine the certainty the Advisory Guidelines otherwise offer.

Secondly, although some of the mathematical formulae the Advisory Guidelines prescribe are simple enough and can be calculated on the back of an envelope, other formulae are not. The main "with children" formulae, for example, require calculation of the effect of spousal support payments to both parties, net of taxes and statutory deductions, and require a computer program or a doctorate in tax law to figure out. This is a real problem, because the two companies that make the software, DivorceMate and ChildView, charge about $900 for their products and quite reasonably won't sell them to persons not connected with the justice system. (DivorceMate has done a tremendous public service by contributing to a free public support calculator, mysupportcalculator.ca, although the calculator lacks the ability to handle some of the more complicated calculations a lawyer would manage through the commercially-available program.) To my way of thinking, it is unfair and unjust that someone's spousal support entitlement or obligation would rest on a calculation he or she cannot perform manually and cannot purchase the software to perform electronically.

Thirdly, the Advisory Guidelines are not a law or a regulation — they continue to exist only in the form of a lengthy paper — and this, to be frank, strikes me as bizarre. We have, through custom, adopted an academic paper as the means by which spousal support will be calculated in this country, and yet the paper has never darkened the doorway of Parliament to be subject to the review and scrutiny of our elected officials, or even the slight amount of thought cabinet would have given to such a regulation.

If I had my druthers, the Advisory Guidelines, which are fundamentally a very good idea, would be vastly simplified and reduced to a plain-language regulation, with simplified formulae and little or no room for interpretation. It would be compulsory rather than advisory, just like the Child Support Guidelines, and use calculations capable of completion by anyone who can master an income tax return.

3. Eliminate ambiguity.

Family law is a wonderful but maddening area of the law for many family law lawyers. It's wonderful because we provide meaningful help to people in a time of profound need and because it is delightfully complex and requires a knowledge of contracts, torts, tax, corporations, bankruptcy, creditors' remedies and the conflicts of law, on top of a significant psychosocial expertise. It's maddening because there are few, if any, hard-and-fast rules and the result in any given case often depends wholly on the circumstances of the particular couple and their children; a good family law lawyer needs to know the law and be able to assess the circumstances of the family in order to gauge the range of likely fair results.

On the other hand, the ambiguity which lends family law its richness is, or should be, a source of profound irritation for the people involved in a family law problem. You cannot just read the Family Law Act or the Divorce Act to figure out what's going to happen to you, your ex and the children; you have to understand how the circumstances of your family relate to the text of the legislation, and that's something that takes years to absorb. Take child support, for example. The only time the amount of child support payable is absolutely certain is if:

• all of the children live with the recipient for unquestionably more than 60% of the time,
• none of the children are over the age of majority,
• the payor earns less than $150,000 per year,
• there are no special expenses,
• neither party has an undue hardship claim, 
• the payor is not self-employed,
• the payor is not a stepparent of any of the children,
• the payor does not have any assets that could be used to generate income, and
• there is no other reason to impute income to the payor.

Not so simple, is it? And child support is really the easiest issue in family law.

The reason for this confusion is fairly straightforward. When government makes a law, it wants the law to make the most sense for the most people possible. This is what the philosopher John Stuart Mill called a utilitarian approach: government's laws are meant to provide the greatest good for the greatest number of people. In other words, they're meant to work as well as possible for most people, most of the time. However, when a particular family comes before the court, it's not a huge mass of people showing up, it's just that one family, and the judge must take government's utilitarian legislation and apply it to that one family. This results in a conflict between what's best for the individual (the judge's job) and what's best for most individuals (the government's job), and what you ultimately wind up with is a dog's breakfast. This is why family law is so difficult.

Although I suspect that most people would agree with the idea that each family should get the result that's best for them, the conflict between the individual and most individuals yields legislation that doesn't mean what it says it means. The words on the paper that are meant to work for most people most of the time must be interpreted according to the needs and circumstances of the particular family before the court. This creates a huge amount of uncertainty and, fairly frequently, conflicting lines of cases that say exactly the opposite thing about the same problem — the case law on court costs is a good example of this. Of course, uncertainty means that when you and your partner are splitting up, you cannot just look at the law to figure out what should happen, you need to see a lawyer, and the lawyer you consult is taking a guess, although an informed guess to be sure, about what's likely to happen.

Unfortunately, this uncertainty results in people taking irrational positions and taking ill-advised risks. (Isn't this why we buy lottery tickets? Because we think that we just might win?) It also means that spending lots of money on lawyers is somewhat of an inevitability: you need the lawyer's expertise to guide you through the range of possible results, and you need the lawyer to defend you against the irrational positions of your ex.

On the other hand, say we had a system where legal principles were fixed and certain, and the level of discretion available to the court and to the parties was really scaled back. (Decisions relating to children would still rest on their best interests and input, of course.) We would have the benefit of laws that generally meant what they said and didn't need an interpreter to comprehend. The range of likely outcomes would be narrowed, and settlements would be easier to reach. Legal advice would be more certain and less circumstantial. You would know what was going to happen when your relationship ended before you got into it. Less people would go to trial.

All of this sounds good, I expect, but there is a downside. All of the people who need the exceptions to the rules wouldn't get them. For these people, the law would be rigid and inflexible and would absolutely be unfair. But the thing to consider is the extent to which the unfairness to these individuals outweighs the fairness, efficiency, expedience and certainty the majority of people would enjoy from a family law system that is less fixated on single-serving fairness.

And, since you asked, this is what I would do to improve the federal and provincial legislation on family law.

Shared Custody Bill Defeated on Second Reading

Bill C-560, a bill to amend the Divorce Act tabled by Conservative MP Maurice Vellacott, was defeated by a whopping 80 to 174 at second reading on 28 May 2014.

If successful, the courts would have been required to impose a regime of shared custody — an equal distribution of children's time between their divorcing parents — except "if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally." This presumption would have applied to all new parenting orders made under the Divorce Act, as well as to all orders previously made under the unamended act.

Regular readers will be aware of my view that defeat was the most appropriate result for Mr. Vellacott's bill, his third or fourth at-bat on this issue since 2009. My reasoning for this position, which you'll find in my 20 December 2014 post "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season,"is fairly straightforward and boils down to this:

"... it would do a gross disservice to our children to presume that the same parenting schedule is in the best interests of all of them. Their needs and interests must be considered and assessed individually, which is precisely what a system without presumptions affords."

The vote and its results can be found in the record of the House of Commons debates for the day; do a search on the page for "560." I am very pleased with this result.

Update to 1998 "Myths and Realities of Custody and Access" Report Published

The FREDA Centre for Research on Violence Against Women and Children has just published a new report called "Myths and Stereotypes in Family Law: Exploring the Realities and Impacts of Custody and Access / Shared Parenting" (PDF).  The report offers a helpful reality check for the canards offered up in support of legislating a presumption of shared parenting between separated parents by, typically, fathers' rights groups, including:

• Including the presumption of “shared parenting,” “joint custody,” or “enhanced access” in divorce law will result in good and responsible parenting.
• More and more men are being denied access to their children by women and the family law process.
• There is an epidemic of false allegations of child abuse against fathers by malicious and vindictive mothers.
• Feminists and mothers are fighting against equality for fathers.

The report updates a 1998 report called "Myths and Realities of Custody and Access" prepared by Margaret Denike and Agnes Huang with the FREDA Centre that I expect was prepared for the federal Special Joint Committee established in 1997 as the quid pro quo for the Senate's cooperation in passing the Child Support Guidelines.

I assume that the update was prepared in light of Bill C-560, a private member's bill proposed by MP Maurice Vellacott, presently before Parliament that would amend the the Divorce Act to include a presumption of shared custody, rebuttable upon proof that "the best interests of the child would be substantially enhanced by allocating parenting time ... other than equally." My previous comment on the bill is available in my post "Equal Parenting Amendment Bill Tabled;" a more complete critique of presumptions of shared custody is available in my post "Why There is No Place for Presumptions of Shared Parenting in Family Law."

Update: 18 March 2014

As I've already received my first comment on the above post, I'll announce that I am imposing some ground rules. You see, when I first wrote about Mr. Vellacott's bill in December, I had the pleasure of dealing with a number of comments from fathers' and men's rights people, which escalated after one anonymous posted a call to arms on a men's rights subreddit titled "Canadian lawyer lies in blog about Shared Parenting Laws in Australia, then censors my comments when I call him on it. Help needed!" Of course, I did not censor his remarks, much of which were submitted over the holidays and were accordingly delayed, and I did not "lie" about shared parenting laws in Australia, I merely provided a view that differed from his, which I later supported with a number of articles at his demand for "citations."

In any event, over the weeks that followed the ALL CAPS and multiple-exclamation-marks crowd went to town with various poorly couched arguments relying on emotional persuasion, rather than fact or logic, and attacked my colleagues and I with a variety of slanderous remarks dwelling on lawyers' supposed avarice and willingness to distort the truth to win. As a result, I will publish and reply to the comment I've just received. Future comments, however, may or may not be published and most certainly will not be published if they contain ad hominem attacks against me. I also don't intend to get into a running debate with anyone. Don't feel bad, I'm just not interested.

For those of the view that lawyers (1) foment discord and promote litigation to line their wallets, (2) are liars or "present baseless assertions," or (3) are "scum" who make the world "a worse off place," please review similar comments on my posts "Equal Parenting Amendment Bill Tabled" and "Why There is No Place for Presumptions of Shared Parenting in Family Law" before making comments in a similar vein. If you have something actually original to say on the topic, fill your boots.

For those who wish help in composing a rational argument in support of their views, you may find some helpful tips in my post "A Brief Guide to Making a Better Argument," which is so well-written it was described as "unbelievable!" by one commentator, although I suspect that he may not have been expressing enthusiasm.

Let's Mediate!: A Primer on the Useful but Underused Notice to Mediate Regulation

In 2007, the provincial government introduced the Notice to Mediate (Family) Regulation, taking the nuts and bolts of the Notice to Mediate (General) Regulation, which didn't apply to family law matters, and applying them to family law matters. This was a fantastic development as the new regulation allowed people involved in family law actions in the Supreme Court to compel all other parties to attempt mediation.

Sadly, the Notice to Mediate Regulation has languished underused in all parts of the province except Victoria, as I found out when I conducted an informal survey of my former colleagues earlier today. This is really unfortunate as the regulation could be a very useful tool in family law matters, especially those in which a trial is looming. Why? Trials are extraordinarily expensive; mediation much less so.

The regulation is straightforward and easy to follow. Here's how it works.

Serve Notice

Any party can begin the process by serving a Notice to Mediate (Family) in Form 1 on every other party to the action. The Notice cannot be served any sooner than 90 days after the Response to Family Claim is filed, and no later than 90 days before the trial is set to start.

Pick a Mediator

The parties then have 14 days to pick a mediator they all like.

If they can't agree on someone within that period, any party can apply to a roster organization for the appointment of a mediator. (A roster organization would be a group like Mediate BC.) The roster organization then has 7 days to provide all parties with a list of six potential mediators.

Each party then has 7 days to strike the two mediators they like least off the list, number the remaining four mediators in order of preference, and send the list back to the roster organization. A party who fails to get this done within the 7 day period is deemed to accept all of the mediators.

The roster organization then has 7 days to appoint a mediator from the remaining names on the original list, taking into account the parties' preferences as well as important things such as the mediator's experience and availability. If there are no names left from the original list, the roster organization can appoint another person as mediator.

The roster organization must then notify all parties of the appointed mediator.

Pre-Mediation Meeting

The mediator must have a pre-mediation meeting with each party. At this meeting, the mediator is required to screen for family violence and imbalances of power, and determine whether the case is suitable for mediation. The mediator must then discuss a number of practical matters including:

1. the importance of obtaining legal advice;
2. the issues that will be covered;
3. the documents that need to be exchanged between the parties;
4. whether any expert reports need to be prepared; and,
5. scheduling.

The party will then sign the mediator's mediation agreement.

Although there are a few exceptions, the regulation requires each party to attend the pre-mediation meeting, with or without a lawyer, and to sign the mediation agreement.

The Mediation Session

A mediation session must be held within 60 days of the appointment of the mediator, unless everyone agrees to a later date or the court makes an order to that effect.

Each party must send a Statement of Facts and Issues in Form 2 to the mediator at least 14 days before the mediation session is to begin; this form is used to describe the facts and legal basis for the position each party is taking. The mediator will distribute copies of each party's Statement.

On or before the start of the mediation session, the parties must sign a Fee Declaration in Form 3. The Declaration sets out the cost of the mediation and says how the mediator will be paid, either equally by both parties or on some other basis. Although the Declaration is binding on the parties, they can also agree during the mediation that a party will be paid back for his or her share of the mediator's fees.

The mediation session will then begin, with or without lawyers, and, hopefully, wrap up with a settlement.

Conclusion of Mediation

A course of mediation is considered to be concluded when:

1. the parties reach an agreement on all issues; or,
2. the mediation sessions ends without an agreement and without an agreement to continue in mediation.

The mediator must then deliver a Certificate of Conclusion of Mediation in Form 5 to any party who wishes one.

Confidentiality

The regulation provides that no one can disclose, or be made to disclose, any information, documents or opinions obtained in the course of mediation. This applies to the parties, their lawyers and the mediator.

This prohibition applies to the family law action itself, to any other civil action and to any criminal proceeding. The prohibition does not cover the Fee Declaration or anything the parties agree can be disclosed.

Noncompliance

If a party doesn't comply with any of the requirements of the regulation, another party can take the problem to court by serving all other parties with an Allegation of Default in Form 4 along with an affidavit explaining the noncompliance.

If the court concludes that the party failed to comply as claimed, the court may:

1. adjourn the mediation or make an order that the mediation session occur;
2. adjourn the hearing on the Allegation of Default, and order that a party attend the mediation session;
3. adjourn the hearing on the Allegation, and order that a party deliver a Statement of Facts and Issues;
4. adjourn the family law action until the parties attend the mediation session; and
5. make an order for costs.

Forms

The court forms are found at the end of the regulation, here.

I understand from my colleagues in Victoria, and the few in Vancouver who use the regulation, that it can be very effective and that they have each had a number of cases that have settled as a result of course of mediation commenced under the regulation. I can see the regulation being particularly useful where a lawyer or a party is being uncooperative and refusing to engage in settlement discussions.

This regulation is a simple, excellent and affordable, but rarely used, tool. Use it. Please.

Equal Parenting Amendment Bill Tabled, would Amend Divorce Act

Maurice Vellacott, Member of Parliament for Saskatoon-Wanuskewin, has succeeded in tabling a private member's bill in the House of Commons to amend the Divorce Act. The Divorce Act is of course the federal law that deals with the divorce of married spouses, custody and access, child support and spousal support.

Mr. Vellacott's proposal, Bill C-560, has certain merits in that:

• orders about the care of children would be dealt with though "parenting orders" rather than orders for custody and access;
• a discussion of counselling, parenting coordination and arbitration would be included in the advice lawyers must give their clients; and
• a parent would be required to give 30 days' notice if moving the child's residence.

However, the bill would also amend s. 16, the part of the Divorce Act that talks about custody and access, to create a presumption that it is in the best interests of children that their time be shared equally between their parents. Here are some of the changes Mr. Vellacott proposes for this section:

(4) Subject to subsection (5), in making a parenting order, the court shall:

(a) apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage; and 

(b) apply the presumption that equal parental responsibility is in the best interests of a child of the marriage.

(5) The presumptions referred to in subsection (4) are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally. 

(6) If the presumptions referred to in subsection (4) are rebutted in accordance with subsection (5), the court shall, in making an order under this section, nevertheless give effect to the principle that a child of the marriage should have the maximum practicable contact with each spouse that is compatible with the best interests of the child. 

(15) The primary considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in aggregate, are

(a) the benefit to the child of having a meaningful relationship and as much contact as is practicable with each of his or her parents; 

(b) the continuity of relationships with relatives; 

(c) the willingness, and the effectiveness of the efforts, of each spouse to facilitate, encourage and support the child’s continuing parent-child relationship with the other spouse; and 

(d) the protection of the child from physical and psychological harm through abuse, neglect or alienation of parental affection.

(17) The court shall apply the following principles in allocating parenting time between the spouses to the extent that they are compatible with the best interests of the child:

(a) weekend, vacation, school holiday, family birthday and religious and cultural holiday time shall be allocated equitably between the spouses, with a view to the spouse with lesser aggregate time having as much of his or her parenting time as possible at times when he or she can be present with the child; 

(b) extra-curricular and educational programs and activities shall be scheduled so that they have an equitable impact on the parenting time allocated to each spouse; and 

(c) if relatives of the child reside in other cities, the travel requirements of a spouse shall be taken into consideration.

(18) If the court makes an order under this section that does not provide for equal parenting time or equal parenting responsibility, the court shall, in the reasons for its decision, explain in detail why such an order was made notwithstanding the principles for parenting orders set out in this section.

I do appreciate where Mr. Vellacott is coming from. There is a common misapprehension that men are discriminated against in family law cases, and all of the men's rights groups I am aware of propose some sort of presumption in favour of shared custody as a facile means of curing the problem.

However, from my perspective as a family law lawyer, such a presumption would not be in the best interests of children. It is certainly true that many separated parents have a shared custody arrangement, or something close to it, and that most of their children are doing very well. There are many other separated parents for whose children a shared custody arrangement would not be beneficial. The situations that leap to mind include:

• where there has been a history of family violence, in the broad sense of the Family Law Act definition;
• where the parents are engaged in high levels of conflict;
• where a parent has taken a hands off approach to raising the children;
• where a parent is dealing with an addiction or another serious mental health concern;
• where the parents have irreconcilable opinions about matters essential to the raising of their children;
• where a parent's work schedule requires long absences;
• where there have been threats to abduct the children; or,
• where a parent has shown no interest in the children after separation.

I'm sure I would come up with a much longer list if I gave further thought to the matter. In any event, my point is that families don't shop from the one-size-fits-all rack. The reality is that each family is different, and the current system, which contains no such presumptions, allows the court to custom-fit the parenting arrangements that are best for each family. One has only to look to the disastrous consequences of Australia's experiment with equal parenting presumptions to realize that such presumptions have no place in family law.

Mr. Vellacott's bill had its first reading on 6 December 2013. Hopefully this bill will suffer the same fate as Mr. Vellacott's efforts in 2010 and 2009, Bill C-422. Mr. Vellacott can be reached by email at maurice.vellacott@parl.gc.ca or by telephone at 613-922-1899 (Ottawa) or 306-975-8886 (Saskatoon). Click here to find your Member of Parliament by postal code.

Update: 24 December 2013

Dear Father's Rights People,

Thank you all very much for your comments. I appreciate, and indeed anticipated, your reaction to this post. However, for a more fulsome explanation of my views, please see my post from 20 December 2013, "Why There is No Place for Presumptions of Shared Parenting in Family Law: A Polemic for the Holiday Season," before posting a comment here.

And to those among you who complain that I have misrepresented Mr. Vellacott's bill, please note that I have provided a link the text of the bill and have quoted directly from the bill above. If you can explain how I have misrepresented the content of the bill, I will gladly post your comment.

I would also like to mention that the bill in question concerns the federal law of Canada, and that the legislation, rules and principles adhered to in Canada may not be similar to those of your jurisdiction.

Update: 24 May 2014

Commenting on this post is now closed. 

Update: 2 June 2014

Bill C-560 was defeated by a 80 to 174 vote at second reading on 28 May 2014.

CanLII Launches Awesome New Interface

CanLII, short for the Canadian Legal Information Institute and a project of the Federation of Law Societies of Canada, has just relaunched its website with a new and significantly improved user interface:

You can enter a Boolean or keyword search term from the main page; clicking on a particular province or territory will narrow your search accordingly. Clicking on the plus sign to the left of the search box expands the box to allow a more focussed search for a case or legislative text:

Your results will appear in a new page, with document hits sorted into four tabbed groups (everything, cases, legislation and commentaries), and a snapshot of the portion of the document in which the search term appears:

I've played around a bit with the new website and it's intuitive and really quite easy to use. CanLII has done a great job here, and, best of all, the website continues to be run free of charge. Thank you, Federation of Law Societies of Canada!

Update: 19 September 2013

Courthouse Libraries BC has published a blog entry with some genuinely useful information about using the new CanLII interface.

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.

Backbencher's Bill on Grandparental Rights Tabled in Ontario

The Globe & Mail has reported on a bill tabled by Liberal MPP Kim Craitor and NDP MPP Cheri DiNovo in the Ontario legislative assembly. The bill would amend the Children's Law Reform Act, a law dealing with the consequences of separation like our Family Law Act but limited to matters concerning children, to allow for "the formation or the continuation of a personal relationship between a grandparent and a grandchild."

The Globe article describes Craitor as saying that grandparents' access to their children can be cut off "when children are used as pawns in a nasty divorce," and provides the following rather melodramatic quotes:

"Far too often what I have seen is that when a couple separates or gets a divorce ... sadly what happens is the relationship between the grandparent and the grandchild diminishes." 

"If you can imagine, a grandparent is no longer allowed to see their grandchild. It's just a horrible thing." 

"I could spend 30 hours telling you all the stories that I've heard and you'd probably shed a lot of tears when you hear from grandparents who've been denied access to their grandchildren." 

"[Grandparents are] more than just relatives. They can provide guidance, they can provide security that the children lack sometimes at home, they provide support, stability a sense of self to the children seeking love and understanding."

Our Family Law Act, like the Family Relations Act before it, says that grandparents can apply for contact (or even guardianship) but provides them no privileged status over other extended family members or even unrelated strangers, and the courts have approached the issue from the perspective that the people with the primary entitlement to time with a child are the child's parents.

Frankly, I'm not sure that this isn't appropriate. I do recognize that grandparents have a special role in a child's life, but the legislation that is designed to guide parents and the courts in handling family breakdown is complicated enough. Family law disputes are quite complex and take an enormous amount of time to resolve as it is; do we really need to add four more parties to the dispute between a child's parents? I have no issue with statements recognizing the special value of relationships between grandparents and grandchildren, but if the new bill proposes to give grandparents a particular standing in the legal dispute between separated parents, I cannot see how the extension of conflict and cost could possibly be in the best interests of the children.

Out With the Old, In With the New: Changes to plan for in 2013

The last few years have welcomed a range of important reforms affecting the practice of family law in British Columbia, including the new Supreme Court Family Rules, recalculated child support tables, the extension of the Notice to Mediate Regulation to family law matters and the expansion of the family law justice centre court model beyond Nanaimo. 2013 is going to be no different. In fact, in 2013 we are going to undergo reforms of a scope and magnitude not seen in the last thirty years. If the changes implemented in 2010, 2011 and 2012 were not your cup of tea, you are going to hate 2013. Read on.

The Family Law Act

The coming-into-force of the new Family Law Act will be the major event of 2013, no doubt about it. The new act will replace the Family Relations Act, which has been at the core of the law on domestic relations in British Columbia since 1972. 

Here are the highlights of the changes to expect on 18 March 2013:

• Family violence: Under the new act, family violence will be a factor which must be considered when the court is making decisions about children. The court will also be able to make protection orders to protect children and adults who are at risk of family violence.
• Parentage: We will have a complete code for determining a child's parentage, including when a child is conceived as a result of assisted reproduction. When assisted reproduction is used, a child may have more than two legal parents.
• Children's best interests: The list of factors that parents and the court must consider when making decisions about children will grow significantly, and will include family violence and a presumption that children's views should heard.
• Guardianship: The new act will give us a new definition of guardianship which takes us back in time to the old common law meaning of the term. Under the new act, subject to some exceptions, parents will usually be a child's guardians during their relationship and after separation. A guardian will be able to appoint a person to act as guardian in the event of his or her illness or death.
• Parental responsibilities: The decisions a child's guardians must make about raising the child will be called parental responsibilities, and will cover everything from where the child goes to school and how the child's health care is managed to signing permission slips for field trips. Only guardians will have parental responsibilities.
• Parenting time and contact: The time a guardian has with a child will be called parenting time. The time that someone who isn't a guardian has with a child will be called contact.
• Child support: Under the new act, the child support duties of a stepparent will be secondary to those of a parent, and the amount that the stepparent must pay will be determined considering the length of time the child and stepparent lived together and the child's standard of living during that time. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Spousal support: People who have lived together for less than two years and have had a child together will be eligible for spousal support. Orders and agreements for spousal support may be reviewable. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Property and debt: The new act will let people keep the property they owned going into to the relationship but require them to share any property or debt acquired after the date of marriage or the date they began to live together, whichever was first, plus the increase in value of any property brought into the relationship. People will also be able to keep other kinds of property they acquire during the relationship, such as inheritances, court awards and insurance payments. The property and debt provisions of the new act will apply to married and unmarried spouses.

Some amendments are likely planned to fix the very small number of problems in the new legislation that were overlooked in the drafting process. However, the next session of the Legislative Assembly, which will probably not begin until February or so, is going to be somewhat preoccupied with matters leading to the mandatory provincial election in May. As a result, it is very unlikely that the Family Law Act will be amended until the fall sitting.

You can read more about the Family Law Act in my Family Law Act Information & Resources page or in the helpful website on the new act put together by the Ministry of Justice.

The Regulations to the Family Law Act

Two main regulations will come into effect with the Family Law Act, the Family Law Act Regulation and the Family Law Act Pension Regulation. There are a few dozen other regulations that will come into effect at the same time, but these are largely housekeeping regulations that change other regulations to refer to the Family Law Act rather than the Family Relations Act.

The Family Law Act Pension Regulation deals with, well, pensions. No surprises there.

The Family Law Act Regulation covers a number of important subjects including:

• the roles and responsibilities of Family Justice Counsellors
• the training and experience people will have to have to work as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators under the new act
• adopting the federal Child Support Guidelines as the Guidelines for the Family Law Act and translating the new act for the purposes of those Guidelines

The Ministry of Justice has written a helpful guide to the Family Law Act Regulation (PDF). You can find links to the new regulations in PDF format in my post "Regulations to Family Law Act Published."

The Family Relations Act

The Family Relations Act, and the regulations made under the Family Relations Act, will all be repealed when the Family Law Act comes into force on 18 March 2013. The repealed regulations include the Child Support Guidelines Regulation, the Division of Pensions Regulation and the Family Relations Act Rules and Regulations Regulation.

The Divorce Act

I am not aware of any changes planned for the Divorce Act. However, it's worth saying that among the things that will be staying the same under the Divorce Act are:

• Custody: The right to physical possession of a child and certain rights, almost like those of a guardian, to make decisions regarding the care and upbringing of the child.
• Access: The time a person has with a child under an order or agreement.
• Child support: The obligation of a spouse or stepparent to contribute to the costs of raising a child, as determined under the Child Support Guidelines.
• Spousal support: The obligation of a spouse to contribute to the living expenses of the other spouse, where that spouse has demonstrated an entitlement to receive it.

As a result, when the Family Law Act comes into force, married spouses will be subject to two slightly different rules for determining child support and spousal support, and to two very different schemes for the care and control of children.

The Child Support Guidelines

I am not aware of any changes planned for the Child Support Guidelines. The Guidelines tables were last amended on 31 December 2011, which means that the next amendment is unlikely to occur prior to 2016.

The Rules of Court

Both the Supreme Court Family Rules and the Provincial Court (Family) Rules will be amended on 18 March 2013 to accommodate the Family Law Act. Both sets of rules will be updated to:

• implement the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests)
• address the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders)
• address new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators)
• delete reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability)

The changes to the Provincial Court rules were somewhat more extensive given their antiquity, however the Minister of Justice has promised a complete overhaul of the rules for sometime in 2013 or 2014.

I expect that further updates to both sets of rules will be announced in the next few months to address the requirements of s. 51(2) of the new act concerning applications to be appointed as a child's guardian:

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

An overview of the changes can be found at the Ministry's website on the new legislation. I have also discussed the updates to the rules in my post "Family Law Act: Changes to Rules of Court."

The Limitation Act

A brand new Limitation Act will come into force on 1 June 2013. Among other things, the new act exempts arrears of child support and spousal support from any limitation period, which means that once arrears have accumulated under ss. 148 or 163 of the Family Law Act, or the equivalent sections of the Family Relations Act, they can always be enforced.

I have briefly discussed the new new act in my post "New Legislation Will End Limitation Period for Claims on Arrears of Support." The old Limitation Act can be found on the excellent website of the Queen's Printer.

Family Day

Thanks to Premier Clark's ambitious families first agenda, our province's first Family Day will be celebrated with a day off on the second Monday of February; this year, on 11 February 2013. Huzzah!

New Practice Standards for Lawyers

On 7 September 2012, the Law Society adopted new practice standards (PDF) for lawyers wishing to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators when the new Family Law Act comes into force. The new standards are onerous but are, in my view, appropriately high.

I have discussed the new practice standards in my post "Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting."

People who are not lawyers and wish to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators must meet the training requirements set out in the Family Law Act Regulation; lawyers who wish to practice in these areas must meet both the requirements of the regulation and the standards set by the Law Society.

New Code of Professional Conduct for Lawyers

The Law Society has implemented a new Code of Professional Conduct (PDF) to replace the old Professional Conduct Handbook, effective today. The code covers most aspects of lawyers' ethical obligations, including confidentiality, conflicts of interest and advertising, and is part of an effort to promote greater uniformity among the practice codes of the various provinces and territories.

I have discussed the new code in my post "New Code of Professional Conduct in Force in January." You can read more about the new code in the Law Society's Bencher's Bulletin newsletter.

Designated Paralegal Pilot Project

Beginning on 1 January 2013, the scope of practice allowed to paralegals under the Law Society's pilot project will expand to allow designated paralegals to appear in court.

In the Vancouver, New Westminster and Kamloops Supreme Court registries only, designated paralegals may apply for a wide variety of uncontested orders, largely concerning procedure and file management, and may make contested applications for the following orders:

• compelling the production of documents
• changing the place of an examination for discovery
• the payment of child support where the children are below the age of majority and the payor's annual income is less than $150,000

In the Caribou/Northeast District and Surrey Provincial Court registries only, designated paralegals may apply for the same sort of uncontested orders and may make contested applications for the following orders:

• compelling the production of documents
• compelling the production of financial statements and financial documents
• the payment of child support where the children are below the age of majority, the payor's annual income is less than $150,000 and the application does not involve situations of shared or split custody or a claim of undue hardship

For more information, see the paralegals page on the Law Society's website.

Provincial Sales Tax

Remember the PST? It's back on 1 April 2013. Lawyer's fees are subject to PST and GST; fees charged by lawyers acting as mediators are subject only to GST.

Happy new year.

New Legislation Will End Limitation Period for Claims on Arrears of Support

The provincial government today introduced new legislation to replace the Limitation Act. The proposed legislation, Bill 34, will tidy up a lot of the complexities of the current act and, along the way, repeal the limitation period presently governing actions for the enforcement of arrears of child support and spousal support.

Under ss. 3(1) and 46 of the new legislation, no limitation will apply to claims for arrears accumulating under a court order, or under an agreement filed in court pursuant to ss. 121 or 122 of the Family Relations Act or ss. 148 or 163 of the Family Law Act; once arrears have accumulated, they can always be enforced. Payors beware!

Wait, that's not spam, you've been summoned for jury duty!

Bill 15, the Attorney General and Public Safety and Solicitor General Statutes Amendment Act, 2011, was tabled in the Legislature for first reading today. Among other things, the briefly-titled bill would amend s. 11(2) of the Jury Act to allow the sheriff to summon jurors for criminal trials by email.

Given the proliferation of phishing scams, it seems more likely than not that a potential juror would assume the sheriff's email was spam or a scam of some sort. Make a mental note: before you hit the delete key, double-check to make sure that the email isn't legitimate. You may be fined if you don't show up!

Read the Attorney General's press release on the new bill.

Fall Legislative Calendar Published

The Legislative Assembly has published its calendar for the fall session, formally known as the fourth session of the thirty-ninth provincial parliament. The Speech from the Throne will be made on Monday 3 October 2011 and the legislature will sit until 24 November 2011, with time off during the weeks of October 10th and November 7th.

With any luck, a bill will be tabled proposing new legislation to replace the Family Relations Act, as foreshadowed by last year's white paper (PDF), at some point during this session. The only question, I think, is whether the government will introduce such significant, marquee legislation when the current Attorney General has been appointed on an interim basis only.

I will publish a link to the page on the Assembly's website where you can monitor the introduction and status of new bills when it becomes available.

For more information about the white paper, click on the "White Paper" label below; I've previously written about the legislative process and the current effect of the proposed law here.

Update: 3 October 2011

You can monitor the status of new bills introduced in the legislature on this page: www.leg.bc.ca/39th4th/index.htm

That's an Expensive Headache: Wife Receives Damages for Husband's Indifference

The Guardian has reported on the curious case of the French wife who sued for divorce based on, I assume, a violation of the duties of marriage under Article 242 of the French Civil Code. What makes the case interesting is the judge's decision to fine the husband 10,000 euros to compensate the wife for the particular violation complained of, namely "lack of sex over 21 years of marriage."

Under the antique English common law, marriage came with an abundance of rights and duties. The husband had the duty to provide his wife with the necessities of life and had the right to her domestic services, the right to her property and income, and the right to have her live with him and have sex with her as he wished, called consortium. It seems that the French civil code developed in a similar manner. Title V concerns the law on marriage, including the obligations marriage gives rise to (Chapter V) and the rights and and duties of spouses (Chapter VI), and Title VI concerns the law on divorce.

In this case the husband was sued for breach of Article 215 (Title V, Chapter VI), which provides that:

"Spouses mutually oblige themselves to a community of living."

The judge held that sexual relations are a part of a "community of living," and the Guardian quotes the judge as saying that:

"A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other."

Interestingly, from the size of the award, one can deduce that the going rate for sex in marriage is about 1.3 euros a day or about $1.80 Canadian at today's rate.

Introduction of Family Law Reform Bill to be Delayed

Attorney General Barry Penner made a statement yesterday that a bill proposing new family law legislation will not be introduced in this legislative session. The fall legislative session, the next opportunity to introduce the bill, will commence sometime in September or October.

The bill, if and when it is tabled in the provincial legislature, will be based on the white paper (PDF) released last summer, although the government has not indicated the extent to which the draft legislation will resemble the Family Law Act described in its discussion paper. For more information click on the "White Paper" label below.

Becoming Common-Law

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.

For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.