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.

Webinar on Predatory Marriages Offered

Carswell, one of Canada's leading providers of legal materials and now a of providers of continuing legal education programs, has announced an upcoming webinar on predatory marriages in Canada taught by Albert Oosterhoff, an adjunct law professor at the University of Toronto, and Kimberly Whaley a lawyer practicing in Ontario. The program summary offers this intriguing description:

"Predatory marriages result when an unscrupulous opportunist, who, purely for financial gain, marries a person with limited or compromised capacity or cognition. Predatory marriages are a form of exploitation and abuse of older adults. These marriages occur when one party to the marriage is incapable of understanding, appreciating, and formulating a choice to marry. Given that marriage brings with it a wide range of property and financial entitlements, perpetrators of such marriages have much to gain and the vulnerable older adults have much to lose when preyed upon in this fashion.    

"This webinar will help attendees identify and recognize signs of potential 'predatory marriages' and will provide attendees with an overview of the current and past case law as well as legislation affecting such marriages and the requisite capacity to marry in Canada"

It sounds like a very interesting course, especially given the graying of family law and rise of elder law.

The program runs from noon to 1:00pm EST (note that this is eastern time!) on Tuesday 4 June 2013, and comes at the rather reasonable cost of $90. For more information:

1. go to the website of the West LegalEdcentre;
2. in the "Search for CLE Programs" box at the middle of the page, enter "predatory marriages" in the Keywords text box;
3. click "Search;" 
4. click the grey box labeled "Live Webcast" in the results page that will pop up; and,
5. click on the program title in the new page that will pop up.

(Carswell, if you'd like some tips about how to make it easier for people to find programs like this on your website, send me an email.)

Court of Appeal Releases Decision on Child Support Liability of New Parent to First Family

The Court of Appeal has just released an interesting decision on a payor's application to suspend her child support obligation to her first family as a result of being on maternity leave for a new child in her second family. (As you might imagine, it is usually men who are the payors of child support and the situation before the court in McCaffrey v. Paleolog requires the happy coincidence of a mother paying child support while becoming pregnant in a new relationship.) The appeal in this case was complicated by legal issues concerning the history of the proceedings, but the reasons from the Court of Appeal are clear enough that we can focus on the law that will be of more general interest.

When a mother paying child support takes maternity leave as a result of a pregnancy in a new relationship, she will usually want relief from the child support obligation to her first family for at least the period she is in receipt of reduced income from maternity benefits. This raises three critical questions for the recipient.

• Is the pregnancy a "material change in circumstances" justifying the payor's application to vary her child support obligation?
  
• If child support will be reassessed, should income be imputed to the mother under s. 19(1)(a) of the Child Support Guidelines on the basis that she is underemployed while on her reduced income?
• To what extent should the first family suffer as a result of the payor's choices in a subsequent relationship?
  

Normally, the courts would leap to impute income to a payor who decided to take a year off work or voluntarily took a position with lower pay. In cases like this, however, there is arguably some necessity to the payor's choice, and the answer to these questions lies in the case law interpreting s. 19(1)(a) of the Guidelines.

This is what that subsection says (I've put the important part in italics):

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

And this is what the Court of Appeal said (you should read the case yourself for the background to the court's analysis):

Imputing Income

Income may be imputed to a parent who is intentionally underemployed unless the parent establishes under s. 19(1)(a) of the Guidelines that the needs of the new child require her to remain at home.

Exception for Children Under the Age of Majority

Having a newborn child or a child of very young age will generally suffice to meet the Guidelines requirement, however "childbirth does not provide an automatic relief from a parent’s child support obligations," and the circumstances of the payor must be examined to determine eligibility in each case.

Guidelines for Imputing Income

The circumstances of the payor should be evaluated using the following factors, which the Court of Appeal, in a 2004 case called Watts v. Willie, borrowed from a 2000 case from the Manitoba Court of Appeal, Donovan v. Donovan:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...

"2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

"3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

"4. Persistence in unremunerative employment may entitle the court to impute income.

"5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

Limit to Relief from Child Support

Where a payor is found to be entitled to the exception for a newborn or very young child, any suspension of her child support obligation must be only for a reasonable period of time, bearing in mind:

1. the financial situation of the payor's present family, since it is the needs of that child which support the s. 19(1)(a) exception, and
   
2. the financial situation of the first family, where the non-payment of support has a particularly harsh effect.

"The circumstances may compel an almost immediate return to work or may provide for full or part-time in-home assistance."

Summary

I can do no better than the court's own summary of its reasoning, found at paragraph 58 of the decision.

"In summary in a case like this:

"1. income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the needs of a child require the parent to remain at home;

"2. it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but

"3. childbirth does not provide an automatic relief from a parent’s child support obligations;

"4. the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan ... ;

"5. any period of non-support must be reasonable in the circumstances."