Dealing with Pets after Separation

Family law is about how serious cohabiting relationships start and end, how children are cared for after separation, how the bills are paid after separation, and how the property and debts that accumulated during a relationship are split when it ends. Despite the folks who’d very much like to apply for custody of or access to their pets after separation, the law on custody and access, and guardianship and parenting arrangements, only applies to human children. In the eyes of the law, pets are personal property, like a coffee cup, a cow or a car. I’m not saying this is right, mind you, just that this is how it is; no matter how attached you might be to your pet, your pet is property. As the adjudicator in Gardiner-Simpson v Cross, a 2008 case from Nova Scotia, said:

“[4] Emotion notwithstanding, the law continues to regard animals as personal property. There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the [statutes on family law]. Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.”

The laws that apply to the ownership of pets, both before and after separation, are the same laws that apply to the ownership of all personal property. This even includes the new Family Law Act, to the extent that a pet qualifies as “family property” or “excluded property” under that law; I’ll talk about that in a bit.

I last wrote about this in January 2012, in a post called “Provincial Court Releases Decision on Pet Custody Battles” about the British Columbia case of Kitchen v MacDonald. That post continues to be widely read and has lately been the subject of an increasing number of comments lately, and it seems to me that a summary of the law on the care, control and ownership of pets following separation would be useful.

Before continuing, I’d like to first emphasize the importance of remembering that pets are property, or, to put it another way, pets are not people. If you have an issue about a pet following separation, it will probably help to make a point of mentally substituting “the toaster” for “the dog” when you’re thinking about the problem. Unplugging your emotions from problems like this can often make it easier to work your way through them. I'll take my own advice for the rest of this post.

A. THE BASIC LAW ABOUT PERSONAL PROPERTY

Here are the general rules about owning and co-owning personal property.

1. In general, the person who bought the toaster owns the toaster.

There are some exceptions to this rule, like if you found the toaster wandering the streets or you bought the toaster as a gift for someone else. However, in general, if you bought it, you own it.

If you bought the toaster, you can provide evidence of the purchase, and your ownership, through a sales receipt, or a bank statement or credit card statement, showing the details of the purchase. If you don’t have paper evidence of the transaction, you may be able to demonstrate ownership by being the person:

1. who is listed as the owner at the vet’s office; 
2. whose name is on the city ownership licence; or, 
3. who is identified on a kennel club registration or breeder’s certificate. 

2. In general, a person who receives a toaster as a gift owns the toaster.

Making a gift of something is one of the more common ways, along with selling or trading the property, that an owner of property can transfer ownership to someone else. Someone who buys a toaster, and then gives it to someone else, loses the right to have and use the toaster; the person to whom the toaster is given, on the other hand, becomes the owner of the toaster, and, with ownership, gains the right to have and to use the toaster.

If you received the toaster as a gift, you may be able to prove that ownership of the toaster was gifted to you by providing:

1. letters, notes or cards that might have accompanied the gift; 
2. evidence of what the giver said to you about the gift, like “happy birthday, I bought you this ferret;” 
3. evidence of what the giver said to others about the gift, like “I bought Sandra a ferret for her birthday;” or, 
4. evidence that the giver has given similar gifts in similar circumstances, like “I give all of my children ferrets for their sixteenth birthdays.” 

As you can see, proving that something was a gift is about proving the intention of the owner to make a gift. The transfer of ownership isn’t a gift without that intention!

Say your boyfriend stops caring for or feeding the toaster, stops taking it for walks and stops taking it to the vet, and say you’ve started doing all those things. Although it’s true that you’re doing all the work, it doesn’t mean he’s necessarily given the toaster to you unless he actually says, “take the toaster, it’s yours.” However, there are some exceptions to this. Read on.

3. You might be able be able claim ownership of toasters that are stray or abandoned.

The basic rule is that an owner’s rights in personal property are never lost unless the owner intends to get rid of the property. But what if the owner of a stray toaster can’t be found? What if the owner has abandoned the toaster?

I won’t say much about owning stray toasters, since this post is about property rights between couples who are separating. I’ll just say that you may be able to keep a toaster that you find, as long as you don’t know who the proper owner is and never find out who the proper owner is. If, over time, you become the person who normally cares for the toaster you might gain a right to have the toaster that is enforceable against everyone else, except the proper owner.

Now it might be possible for you to argue that the proper owner has abandoned the toaster, especially if the owner has stopped caring for or feeding the toaster, stopped taking it for walks and stopped taking it to the vet, and you’ve taken over all those chores. Arguing that your partner has abandoned the toaster can be challenging, however, and it’s up to you to prove that she’s abandoned the toaster.

Here’s how an adjudicator from Nova Scotia described the law of abandonment in the 2014 case of Chiasson v Kennedy:

“[16] … Abandonment occurs when there is ‘a giving up, a total desertion, and absolute relinquishment’ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property … abandonment involves … an intention to relinquish title, ‘that is, an indifference as to the fate of the chattel, coupled with sufficient acts of divestment’…”

And that, in a nutshell, is what you have to prove to show that your partner has abandoned her toaster.

“Chattel,” by the way, is another term for personal property.

4. If you can’t claim ownership of the toaster even though you’ve been the only one caring for it, you may be able to claim compensation for your contributions.

If you’ve wound up doing a lot of the day-to-day work associated with the toaster or paying for a lot of the toaster’s expenses, like food, vet bills and grooming costs, and you can’t find a way to claim that you own the toaster, you can ask for the next best thing: compensation for your contributions to the maintenance of the toaster. This is called an “unjust enrichment” claim.

Although we normally see unjust enrichment claims in the context of someone’s contributions to “real property,” such as houses, condominiums and cottages, I don’t see any reason why the claim couldn’t be made with respect to personal property. The idea behind claims like this is that you’ve made contributions to property owned by someone else for which you’d normally be paid in some way. There are three things you have to prove to establish unjust enrichment:

1. the owner was enriched because of your contributions to the toaster (for example by not having to buy toaster food or pay for someone to walk the toaster); 
2. you lost something as a result of your contributions (like the money you spent feeding the toaster or the money you could have made walking someone else’s toaster); and, 
3. there is no legal reason for the owner to be enriched by your contributions (like a contract which required you to care for the toaster). 

If you’re successful, you’ll then have to prove the amount by which your efforts enriched the owner. Although you won’t get to keep the toaster, unless there’s no other way for the owner to pay out what he or she owes you, at least you’ll be partially repaid for the time and money you’ve spent on the toaster.

5. More than one person can own a toaster.

Finally, it’s important to know that more that one person can own a toaster, just like more than one person can own a car or a house. This might happen if both people put money into buying the toaster, if the toaster is bought using money from a joint account or if the toaster is bought using money borrowed from a joint credit card. It might also happen if the person buying the toaster meant that both people would own the toaster.

Ideally, you’d prove joint ownership with a sales slip that demonstrates joint contribution to the purchase by saying something like “received for the purchase of Sam, the four-month-old purebred toaster, $100 from Sandra and $100 from Kaitlyn.” This would create a presumption that both of the buyers own the toaster. However, sales slips rarely say anything so useful, and most buyers never think of asking for it. Absent this sort of proof, you’ll need to demonstrate that you both intended to jointly own the toaster. Just like gifts, intention is everything.

Things like sales receipts that show both names (“Sam, sold to Sandra and Kaitlyn for $200”), city licences in both names, statements from joint bank accounts and credit cards showing the purchase all tend to support the argument that both of you meant to jointly own the toaster, but none conclusively prove that this was your shared intention. You might be able to prove you had this intention through:

1. letters, notes or cards that you might have exchanged around the time of the purchase; 
2. evidence of what your partner said to you about the purchase (“I’m so happy we bought Sam together”); and, 
3. evidence of what your partner said to others about the purchase (“Sandra and I bought Sam together”). 

However, it’s not always an advantage to co-own a toaster, as we’ll see in a moment.

B. COURTS THAT CAN DEAL WITH PROPERTY CLAIMS

Okay that’s the important stuff. Assuming this doesn’t help you and your ex come to an understanding, you may find yourself having to go to a mediator, an arbitrator or a judge. If you’re going to court, which can sometimes be cheaper although it’s always a lot slower, the courts you can go to to ask for orders about toasters are:

1. Small Claims Court.

This branch of the Provincial Court is able to deal with disputes about the ownership of personal property under the common law, including the law of contracts but excluding the law of trusts, and under most of the provincial legislation that deals with the ownership of personal property.

The Provincial Court can’t make orders about property under the Family Law Act, however, and if you have other issues relating to your separation you’re likely in Family Court, another branch of the Provincial Court, dealing with those issues under the Family Law Act. That said, I don’t see any particular reason why you couldn’t be in Family Court dealing with support and parenting problems at the same time you’re in Small Claims Court dealing with the toaster.

2. The Supreme Court. 

The Supreme Court can deal with all disputes about the ownership of personal property, including property that may be family property or excluded property under the Family Law Act.

C. ORDERS ABOUT PERSONAL PROPERTY

Alright, so let’s say that you’re in stuck court. That’s too bad, but there you go. The sorts of orders you can and can’t ask the court to make about toasters include these.

Remember that because toasters are personal property, the best interests of the toaster at issue aren’t relevant. Nor is who loves the toaster more or, usually, who would provide the toaster with a better home. What counts is ownership. As the adjudicator in Hawes v Redmond, a 2013 decision from Nova Scotia, put it:

“[26] I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point. This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle.”

Bicycle; toaster. Whatever. 

1. You can’t ask for custody of the toaster.

“Custody” is a Divorce Act term that applies to children. Human children.

What you’re probably looking for is an order that gives you the right to have the toaster that’s enforceable against your ex; more on this a bit later. You might also be asking the court to declare that you’re the owner of the toaster.

2. You can ask the court to make a declaration about who owns the toaster.

If you do this, you're asking the court to decide who the owner of the toaster is. This is helpful when there are doubts about who owns the toaster. Besides, being the owner of the toaster usually lets you say where the toaster lives… like, for example, with you.

If you lose, however, the court will most likely declare that your ex owns the toaster. The court isn’t likely to not make a declaration about who owns the toaster once the issue has been brought up.

3. You can’t ask for access to the toaster.

“Access” is also a Divorce Act term that only applies to human children.

The closest I can put the idea of access into an order about property is an order that would give each person the right to possess the toaster on a regular, alternating basis. Although there’s nothing stopping anyone from agreeing to that in a contract like a separation agreement, and the court would probably make an order like that if everyone agreed to it, the idea of a right to the periodic possession of property doesn’t fit well with the law on personal property or the general principle that court orders should resolve, or at least decrease, the conflict between litigants.

First off, if you’re not the owner of the toaster you don’t have the right to have the toaster, on a periodic basis or otherwise, unless you’ve got a contract with the owner. Second, if you’re the owner and you don’t have a contract requiring you to let someone have the toaster from time to time, there’s nothing I can imagine that could oblige you to do so.

Third, if the two of you both own the toaster and can’t agree to share it, the court won’t make you share it. Here’s what the court said about it in C.S. v D.S., a 2005 case out of Newfoundland and Labrador:

“[44] ... The dog is a matrimonial asset but it is, without being facetious, indivisible. ...”

Accordingly, the court’s options are these:

1. decide which of you will be entitled to own and keep the toaster, and possibly require the person keeping the toaster to pay compensation to the person who doesn’t get to keep the toaster; or, 
2. make you sell the toaster, and then divide the sale proceeds between you. 

The compensation potentially payable in the first case would likely be based on the current fair market value of the toaster – what a neutral stranger would pay to buy the toaster, at its current age and in its current health, from you.

4. You can ask the court to make an order about who should possess the toaster.

Owning something is sometimes different than having something. Landlords, for example, own the apartments they rent out but don’t have the right to possess their apartment; the right to have the apartment is what they sell to their renters. Orders for the possession of things are useful because they say that you have the right to have those things, whether you own them or not.

If you’re asking the court for a decision about who owns the toaster, you could ask for an order for the possession of the toaster at the same time and kill two birds with one stone. This will be especially useful if you’re the owner and your ex is keeping the toaster from you.

5. You can’t ask for an order that you jointly own the toaster or continue to jointly own the toaster.

Although you can make an agreement that you’d continue to jointly own the toaster, and the court would probably make an order that you jointly own the toaster with your agreement, the court is not likely to make an order that you jointly own the toaster over someone’s objection. This would create, or perpetuate, pointless conflict. If you can’t agree that both of you will continue to own the toaster together, the court’s options are to:

1. decide which of you will be entitled to own and keep the toaster, and possibly require the person keeping the toaster to pay compensation to the person who doesn’t get to keep the toaster; or, 
2. make you sell the toaster, and then divide the sale proceeds between you. 

Again, the compensation potentially payable in the first case would likely be based on the current fair market value of the toaster.

6. You can ask that you be compensated for the money you spent feeding and taking care of the toaster.

If you don’t own the toaster, you can ask the court to make a declaration that the owner of the toaster was unjustly enriched by your contributions to the care and maintenance of the toaster. If the court decides the owner was unjustly enriched, and you can somehow prove what you spent on the toaster and what your non-monetary contributions were worth, the court may then make an order that your be compensated for your contributions. Non-monetary contributions might include taking the toaster for walks, bathing it, grooming it and so on.

Proof of your spending might include grocery bills and receipts from the vet, but few people take the trouble to keep all of these receipts and you’ll likely be out some money. It will be difficult to establish the value of your non-monetary contributions, but you can get some idea by looking at what commercial services charge for things like toaster-walking, grooming and so on.

7. You can ask that you be compensated for the money you put into buying the toaster.

If you’re not the toaster’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the toaster, you can ask to be repaid for what you paid toward its purchase.

This isn’t an unreasonable order to ask for, but I'd imagine that most toasters are depreciating assets. The amount you’d pay for a very young toaster with years of life ahead of it is not what you’d pay for a middle-aged or elderly toaster. If you’re arguing about a four-year-old toaster, should the person keeping it be obliged to give you back your original investment or a proportion of that investment based on the toaster’s current value? The current value might be fairest, especially if you also enjoyed the toaster.

8. You can ask for an order that the toaster be sold, and that the money from the sale be split between you.

This is the scorched-earth option. It’s saying “fine, if I can’t have the toaster, you can’t either.” It reflects your strong emotional bond to the toaster and how upset you are at not being able to keep it, but also disrespects your ex’s emotional bond and attachment to the toaster. It also comes across as rather petty.

The adjudicator in Gardiner-Simpson summarized the problem with this approach as follows:

“[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the dog to an outsider would only double the pain.”

I can’t imagine too many judges making this sort of order. In fact, I can really only imagine this order being made as a way of signalling the court’s frustration with the behaviour of everyone involved.

D. THE FAMILY LAW ACT

Under the Family Law Act, certain property is excluded from division between married and unmarried spouses, namely property brought into the relationship and certain kinds of property received during the relationship, namely gifts, inheritances and personal court awards. The property spouses share is property brought during the relationship as well as the increase in value of excluded property.

1. Toasters as excluded property.

In most cases, a toaster that’s brought into a relationship will be excluded from division between the spouses and remain the sole property of the owner, as will a toaster that’s inherited by a spouse or a toaster that’s given to one of the spouses during their relationship. Toasters are, however, assets with depreciating value, which means that it most cases there won’t be any increase in the value of a toaster that the owner must share with the other spouse.

Curiously, spouses are also obliged to share family debt, and "family debt" is defined as including “all financial obligations” incurred by a spouse during their relationship. As a result of this definition, debts incurred with respect to excluded property, like a toaster’s unpaid vet bills, might qualify as shared debt that both spouses are responsible for.

2. Toasters as family property.

Toasters bought during a relationship will qualify as family property, as long as the purchases aren’t made using excluded property. Toasters that are family property are subject to “division” between spouses regardless of which spouse bought them.

In family law, family property is usually divided so that each spouse is left with a roughly equal share of the family property (“you keep the car, and I’ll keep the ride-on mower and the Lionel Ritchie boxed CD set”), sold and the proceeds divided between the spouses (“we’ll sell the house, use the sale money to pay out the mortgage and our credit cards, and we’ll split what’s left over between us”), or some combination of the two (“I’ll keep the Lionel Ritchie set, and you keep more of the money from the sale of the house in exchange”). Since selling the toaster isn’t really practical, this means that one of the spouses is going to wind up keeping the toaster and compensating the other for the value of his or her interest in the toaster.

Now, just because toasters may qualify as family property and can be divided under the Family Law Act doesn’t mean they should be divided under the act. In Ireland v Ireland, a 2010 case from Saskatchewan, the parties’ lawyers agreed that a toaster was family property and divisible under the family law legislation, however the court commented that:

“[9] It is an unacceptable waste of these parties’ financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one-day trial involving three witnesses, including an expert called by one of the parties. It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources. 

“[10] Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the court should not be engaged with interim applications or the trial of an issue such as this.”

Really, the judge’s observation in this case goes beyond dividing toasters by application under the family law legislation; the point that arguing about such claims in court is a waste of litigants’ financial resources seems to me to apply to all court claims involving toasters. As the court said in Warnica v Gering, a 2004 Ontario case:

“[19] … Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised [as property orders] or otherwise. …”

E. RECENT CANADIAN CASES

Here’s a summary of some of the Canadian court decisions on pet custody claims made in the last decade or so. There are very few of them.

1. It was a gift!

In the Hawes v Redmond decision, no one had any documents demonstrating ownership. The dog in wasn’t registered with the city or a kennel club, and the vet bills were paid by whomever brought the dog in. Redmond claimed that Hawes bought the dog as a gift for her, Hawes claimed that the dog was bought as a gift for the family as a whole.

“[23] In the case here, I am satisfied that Dr. Hawes intended to make a gift of [the dog] to Ms. Redmond, at the important time in the analysis - namely at the beginning. I have no doubt that she knew that the dog would be a welcome addition to this very dog-focused household, but she appears to have been principally motivated by a desire to strengthen or salvage her relationship with Ms. Redmond. She used the term gift and connected it to Ms. Redmond’s birthday. Ms. Redmond clearly accepted the gift, and in her Facebook posts presented the dog to her friends as hers, in the singular sense. 

“[24] I find it significant that when Ms. Redmond went to visit her mother, she brought the two dogs that she regarded as hers. She did not bring four dogs (unmanageable though that might have been). All of this clearly points to her belief that the dog had been gifted to her by Dr. Hawes, a belief that Dr. Hawes never sought to deny until the time of separation. 

“[25] On the other side of the equation, there is very little evidence that would negate the gift. The fact that much of the care fell to her, and that the dog would become bonded to Dr. Hawes and her children, is equivocal, as I have noted. This was a function of family dynamics.”

This case shows how important the buyer’s intentions are, in particular the buyer’s intentions when the property purchased, and how people’s beliefs can be inferred from their behaviour.

2. It wasn’t a gift!

A similar problem arose in the Gardiner-Simpson v Cross case. Cross bought the dog and registered it with the city and the vet. Gardiner-Simpson said that Cross bought the dog as a Christmas present for her. Cross said that if the dog was a gift, if was a gift to the family. Either way, Gardiner-Simpson and Cross shared responsibility for the dog while they lived together, and neither refused to participate in the care of the dog on the basis that it wasn’t his or hers.

“[32] The concept of a gift is legally more complex and problematic than most people may realize. The law is suspicious of alleged gifts, especially under circumstances where the donor is no longer alive or otherwise able to corroborate the intention to make a gift. Perhaps sadly, it is more consistent with human nature to find people acting in their own interest and not being motivated by pure generosity. 

“[33] This is not a matter where the alleged donor is unavailable to speak to his intention, so the matter becomes more of a straightforward question of fact, namely: was there a clear intention on the part of the alleged donor … to vest the property interest in [the dog] in [Gardiner-Simpson]? 

“[34] I am unable to conclude on the evidence before me that there was any intention on the part of the [Cross] to make a gift to [Gardiner-Simpson] and vest the property right in her alone. If it was a gift at all, it was a gift to them both. I do not give any real weight to statements allegedly made to family members about [the dog] being the [Cross’] Christmas present to the [Gardiner-Simpson]. I do not accept that that was the true intention. In substance the purchase of the dog was an acquisition for their joint enjoyment. 

“[35] [Cross] purchased the dog in his own name. All of the documents are consistent with that. The dog’s vet records throughout continued to name the [Cross] as her owner. The fact that [Cross] made payments on the credit card does not carry any weight with me, because I accept that this was just a way of splitting the bills equitably. 

“[36] The only supportable conclusion that I can reach is that the ownership interest in the dog was a joint one. Upon her acquisition, [the dog] became the property of both [parties] jointly.”

This case shows that a person’s intention to make a gift must be clear and unequivocal before the buyer will lose ownership of the property. However, in this case, the circumstances also didn’t support the idea that the buyer was the sole owner of the property. In case you’re curious, the court didn’t have to decide who had the better claim to the dog to resolve the joint ownership problem, as the parties had a separation agreement that resolved the issue.

In Kitchen v MacDonald, the issue was whether MacDonald’s father made a gift of a dog to both parties or to just MacDonald. MacDonald was involved in selecting the dog and was solely responsible for taking the dog to the vet, paying the vet bills and registering the dog with the city. However, MacDonald also made sure that Kitchen spent time with the dog and other evidence suggested an attitude that the dog belonged to the two of them.

“[6] … [MacDonald] admits that the dog did spend time with Mr. Kitchen. In fact, she corrected him if he referred to the dog as his, and stopped contact when he posted a photo of ‘his’ dog on the internet. He worked nearby and was willing from time to time to come and take the dog, some times for a few nights at a time. … At trial, Mr. Kitchen acknowledged that he did not play a role in the selection or purchase of the dog. He also acknowledged, although he said that he purchased dog food and other items for use at his home, he did not otherwise contribute to the upkeep of the dog. He believed the dog was his because she called him [the dog’s] daddy, he took care of it often and they treated it as theirs when they were in a relationship. 

“[7] There is uncontroverted evidence that Ms. MacDonald referred to Mr. Kitchen as the dog’s ‘daddy’. There is an undated letter on file as well reporting to be from [the dog] to ‘my daddy’, apparently following a break-up where Ms. MacDonald writes on behalf of the dog that she is sorry she cannot make them a family. It suggests ways that he can come and see the dog while she is out of the house at work. It concludes by saying ‘I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is. She wants us to both be happy.’ There were also gifts and cards over the years addressed from the dog to his ‘daddy’. Ms. MacDonald also encouraged Mr. Kitchen continuing to look after the dog during the day. She encouraged the visits and the exercise and the companionship. She was receiving by-law tickets with respect to the barking and it was obviously a relief to her to have someone entertaining the dog to help address this problem. By anthropomorphizing this dog, Ms. MacDonald led Mr. Kitchen to, and Mr. Kitchen allowed himself to be possessed of an expectation that, the dog was ‘the child’ of both of them. This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog. 

“[8] … Mr. Kitchen was able to enjoy the benefits of the dog’s companionship without the burdens of its ownership. He was not asked to nor did he expect to contribute to the costs of the dog. In fact, it was her parents who assisted her when she required financial assistance for the care and keeping of the dog. This alone would not resolve the issue of ownership. However, all of the factors in the mix conclusively determine that Deanna MacDonald is the sole owner of the border collie. Richard Kitchen’s interest is merely a sentimental one. That does not bestow any right of possession on him.”

The importance of this case is that emotional interests do not create legal interests. In order for Kitchen to be a joint owner of the dog, MacDonald’s father would have had to have intended to make a gift of the dog to them both.

In Warnica v Gering, the dog in question was found not to have been a gift to Warnica on the basis that Gering bought the dog and the dog had always lived with Gering.

“[26] They do not contest that the dog, a mixed breed, was purchased from the local pound in 1996 for $100. They do not contest that [Gering] purchased the dog. They do not contest that the dog always lived with [Gering], except for a period of a few months after the parties ceased to have a relationship, when they shared possession back and forth. 

“[27] It would seem odd, if the dog was purchased as a gift for [Warnica], that it always lived with [Gering] prior to the termination of the parties’ relationship. Assuming a ‘he said, she said’ situation otherwise, that is the best evidence on the gift allegation and it stands against [Warnica]. 

“[28] It would appear as if [Warnica’s] involvement with the dog was totally dependent upon his relationship with [Gering]. [Warnica] may have spent money for such things as dog food and the like and he may have spent time caring for the dog. I do not consider that to be relevant to who owns the dog.”

Note that Warnica’s contributions to the costs of maintaining the dog didn’t bear on the ownership issue.

3. It’s family property. Who should keep it?

In the Ireland v Ireland case, the parties agreed the dog was family property, as a result of which both of them were entitled to the keep the dog. The question the court had to decide was which of them would be entitled to possess the dog. Both were involved in the dog’s care, both “derived companionship” from the dog and both exercised with the dog.

“[14] In this case, the court awards ownership and possession of [the dog] to Diane for, among other reasons, the following:

1) The evidence convinces me that it was primarily on Diane’s initiative that the parties acquired this pet and that she was principally involved in its early training and care; 

2) Although both parties have become very attached to their pet and share activities with her in their present circumstances, [the dog’s] companionship is more important to Diane than it is to David; 

3) David has his current partner who owns two dogs of the same breed as [the dog]. Although David does not have the same attachment to them, nevertheless he has the benefit of their presence and companionship including the one with whom he runs; 

4) Diane expects to retire from her profession as a nursing manager at the Moose Jaw hospital. She plans to spend extended periods of time in the winter in a “dog friendly” southern United States location. A continuation of the “shared possession” would be unworkable in these circumstances; 

5) The parties have had one or two difficulties during the exchange of [the dog’s] possession which prompted, on one occasion, a threat to call the police. The parties deserve to be spared these interactions, the potential for breaches of the peace and further unacceptable reliance upon public resources to settle disputes between them should they arise.”

Diane was required to pay $350 to David, being half of the dog’s purchase price.

This case suggests some of the factors the court might consider in deciding which spouse should be entitled to keep a family pet, including: the degree of attachment between the spouses and the pet; and, the availability to each spouse of similar pets.

F. SUMMARY

I don't know that there's a particularly meaningful way to wrap up this post, except to emphasize that, in court, pets are property and will be dealt with according to the same laws that apply to all other kinds of personal property. I acknowledge, of course, that the emotional attachments people develop toward their pets makes arguing about Fluffy wholly different than arguing about Aunt Mabel's silver spoon collection. It's exactly this emotional attachment which makes the law on personal property something that's best avoided if at all possible.

If you have a disagreement about the care of your pets after separation, negotiation, mediation and collaborative settlement processes are all better ways of resolving your dispute than court. Although the law is always relevant to how people manage a legal dispute, these out-of-court processes allow you to take into account all of the intangible values, interests and emotions that go into a relationship with a pet in crafting a settlement of your dispute.

The comments to my post "Provincial Court Releases Decision on Pet Custody Battles" demonstrate the huge range of legal problems that couples with pets can have after their romantic relationships have come to an end. If you can't resolve things by talking to each other, please consider hiring a professional to help you find a solution without going to court. The cold and impersonal rules about personal property that apply perfectly well to watches, wheelbarrows and winches aren't likely to acceptably address disputes about pets.

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.

Get Over It, Part One: Why It Pays to Let Bygones Be Bygones in Family Law Disputes

Difference is a necessary part of the human condition, without which we'd be an awfully dull lot. Although difference is what gives us creativity and invention, it's also the cause of intolerance and war, and it's what keeps family law lawyers in business. As Martin Gore famously put it,

People are people so why should it be
You and I should get along so awfully?

There are an infinite number of reasons why committed, long-term relationships breakdown. Some people get bored. Some grow apart as they get older. Others just turn into assholes.

Once upon a time, thanks largely to Catholic dogma, marriage was presumed to be a permanent enterprise that would end only upon the death of one or both spouses. That was probably a reasonable arrangement when life expectancy topped out at 30 or 35, but people nowadays generally live into their 80s, and a life-long commitment to one person is an awfully, awfully long commitment.

However, when we of the commonwealth let our hair down in 1857 and agreed that people could get divorced, we weren't prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn't just say talaq, talaq, talaq and be done with it, you had to get a judge to make a divorce order and that meant proving that you met the legal test to qualify for divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the Divorce and Matrimonial Causes Act on the basis that your wife had committed adultery at some point during your marriage. If you happened to be female, simple adultery was a no-go. Instead, you could ask for a for a divorce on the basis that your husband had committed:

• incestuous adultery;
• bigamy with adultery;
• rape, sodomy or bestiality;
• adultery coupled with cruelty; or,
• adultery coupled with — my favourite — "desertion without reasonable excuse" for at least two years.

We in Canada are so awesomely progressive that our first legislation on divorce, the 1968 Divorce Act, abolished the distinction between sexes. Regardless of gender, you could ask for a divorce on the basis that you had been separated for at least three years, or, under ss. 4 and 5, that your spouse had:

• committed adultery;
• been guilty of sodomy, bestiality, rape or a "homosexual act" (exquisite interior design, perhaps?);
• gone through a form of marriage to someone other than yourself;
• treated you with such cruelty that you could no longer live together;
• been imprisoned for at least three of the last five years;
• been recently sentenced to death or imprisonment for at least ten years;
• been "grossly addicted" to alcohol or drugs for the last three years; or,
• disappeared for the last three years or deserted you for the last five years.

Ahead of our time we truly were.

The Divorce Act didn't stop there. You could also ask the court to make orders for spousal support and child support, and for the custody of your children. However, the court, in addition to considering your "condition, means and other circumstances," also had to think about "the conduct of the parties." Ouch. You can imagine the havoc wrought when success or failure hung on proof of your misconduct during your marriage, or that of your spouse.

Things got much better with the 1985 Divorce Act, which introduced a "no-fault" version of divorce. Although you could still get divorced because of your spouse's adultery or cruelty, misconduct was removed as a consideration in making orders for child support, and the court was expressly forbidden from considering the conduct of a spouse during the marriage when making orders for spousal support and custody.

Now the thing about people is that you can say that misconduct isn't a factor, but it doesn't stop them from thinking that it should be a factor, especially when they're still full of the fraught and inflated emotions that accompany the breakdown of a long relationship. (Terrible lawyers who fail to steer their clients away from this line of thinking certainly don't help.) This brings me to the point of this particular post: it is both idiotic and expensive to take positions in family law disputes because of your hurt feelings or desire for revenge. Let me give you a couple of examples and explain.

"He knew that full well that doing drugs was a deal-breaker — that was why my first marriage broke up! — and he did cocaine anyway. Is this grounds for me getting more than half the family property?" 

"She's the one who had the affair. I'm not going to pay her a penny of support, even if I have to quit my job." 

"I told him when we got married that pornography was an issue for me. He promised me that he would never use it. When we got an internet connection, I asked him again if he would be able to avoid looking at pornography, and he promised he could. I just saw his web browser history and I am completely disgusted. I feel that he's broken a fundamental trust. I want sole custody!"

All of these statements come from people I've spoken with in the last few months, and, regardless of my personal views on the probity of such behaviour, they were all pretty wound up about the situations they found themselves in and were genuinely upset about their spouse's behaviour.

I get that. I understand. I've had thousands of clients in the years I practiced family law, and I totally appreciate how hot emotions run when a long-term relationship comes crashing to the ground. No worries. A problem, however, arises when these emotions are allowed to drive the train rather than the rational side of your brain. The simple truth is that if you walk into court with positions like these, you will lose. None of these positions are supported by the law or the legislation. Not only will you most certainly lose, but:

• your legal fees will be much higher than they would otherwise have been;
• you may be ordered to pay your spouse's costs of the application, the trial or the whole of the court proceeding;
• the enmity you feel toward your spouse now will last far longer than it normally would, and your spouse is certainly going to share the sentiment; and,
• you will likely lose the respect of your children and, I hope, of your friends and family as well.

The thing is, we no longer think about fault, misconduct, narcissistic injury and the priggish sensibilities of a spouse when we deal with family law problems. Yes, doing illegal drugs is a problem, but it's got nothing to do with how property is divided. Nothing. If you have kids, and he's high when he looks after them, then I have a problem, not because I have a moral issue with his choices but because it reflects poorly on his priorities and parenting capacity. Yes, having an affair is bad, but it's got nothing to do with whether your spouse is entitled to spousal support. Nothing at all. And if you quit your job, I'm going to ask the court to impute income to you and ask for your spouse's costs of the application because of your petty, irresponsible behaviour. Likewise I have no issue with someone's use of pornography, unless the pornography involves children or he watches pornography in front of the kids. You might object to behaviour you consider sinful, but your views of his corruption and general naughtiness have nothing to do with his relationship with the children and capacity to care for them. 

Now consider, for a moment, how your spouse is likely to respond to claims involving his or her weak morals, drug and alcohol use, abusiveness, quick temper, masturbatory habits and so forth. People don't generally take kindly to seeing claims like that in court papers, whether they're true or not, and tend to fight fire with fire. I guarantee that your spouse is not going to write an affidavit admitting to everything. Instead, your spouse will file a stern response that not only denies the truth or extent of the claims you've made but asks for costs, and will then write an affidavit talking about all of your peccadilloes and indiscretions! I once had a case, very early on in my career, which went something like this:

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

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

She thought she was seizing the moral high ground by pointing out his weaknesses. He replied by trivializing the severity of his drinking, as I would have expected, and came back with a spicy counterargument about her drug use. I still very much regret this case. 

But what do you think the court does in circumstances like this? Each person is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty. Is this how decisions about the care of children should be made? With the greatest of respect, I think not.

The court, you see, does not want to deal with people who come to court with problems, complaints, grievances and bizarre claims that have no reasonable prospect of success. The court does want to deal with calm, rational people who come to court with solutions, and whose preferred results are well within both the law and the range of likely outcomes. Among other things, this means:

• dropping arguments and claims that are based on your own feelings of woundedness or your spouse's purportedly immoral behaviour;
• avoiding mention of historical events that are not genuinely relevant to the claims before the court, no matter how much those events upset you and continue to upset you;
• keeping your complaints about minutiae and the mundane to yourself;
• writing affidavits that are maximally factual, avoid invective and use a minimum number of adjectives and adverbs;
• agreeing to obligations that you cannot avoid;
• making claims that are minimally controversial, like asking for a divorce based on separation even though you could also ask for a divorce because of your spouse's infidelity; and,
• proposing rational solutions that look to the future, that work for everyone and that are likely to promote the best interests of your children.

Put more simply, you must grow up and let bygones be bygones. Trust me; this will redound to your benefit, that of your spouse and those of your children.

All About Separation: The 2015 Edition

On 3 March 2012 I posted a short article called "All About Separation," which addressed a bunch of questions I am often asked about the mechanics of separation. The post has since become the most frequently read article in this blog with 235 comments and 65,192 pageviews as of writing, dwarfing the next most frequently read article which had a mere 58 comments and 35,323 pageviews. However, lots has happened since 2012, chief among which was the introduction of the Family Law Act in 2013 and the repeal of its predecessor, the Family Relations Act, and it seemed to me that an update was long overdue. This is that update. Read on!


A lot of the people who find my wikibook and this blog have questions about separation. How do I separate? When am I separated legally? Can I see other people after I've separated? In this post I'm going to try and answer these and other questions. If I haven't answered your question, post a comment.

What is separation?

People in a serious relationship separate when one or both of them decides to end the relationship. People that are just dating break up. Normally, we think of married couples or couples who are living together as "separating" when their relationships end, probably because most of the time someone winds up moving out.

Separation is an important event under the Family Law Act, because the date of separation is:

1. the date when married and unmarried spouses get a right to a half-interest in all of the family property; 

2. the date when married and unmarried spouses take a responsibility for half of the family debt; and, 

3. the start of the two year period within which married and unmarried spouses must start a court proceeding to divide property and debt under the act.

Separation may also affect whether you are a child's guardian or not. Under s. 39(1), the parents of a child are deemed to be the child's guardians while they live together or after they separate. However, if you separate before the child is born, neither of the parents will be the child's guardian until a court makes an order appointing one or both parents as guardians. Ouch.

Hey, you just talked about "unmarried spouses." What do you mean?

People usually talk about couples in unmarried, long-term relationships as common-law spouses something similar. Even though most federal laws talk about common-law partners, "common-law" is actually wrong, and a bit misleading.

Once upon a time, a couple could get married without the need of a priest, rabbi, imam or marriage commission to utter an incantation and waive a wand. They could get married, simply by agreeing to stay with each other and be faithful to each other in the presence of witnesses. That was an old, now extinguished right under the common law. Hence the phrase "common-law spouse."

However, as I've said, this right is long since gone. All that counts now under the Family Law Act is whether you qualify as a spouse. Under s. 3 of the act, you are a spouse:

1. if you are married to someone else; 

2. if you've lived with someone in a romantic relationship for at least two years; or, 

3. for some but not all parts of the act, if you've lived with someone in a romantic relationship for less than two years but have had a child with that person.

How do I separate?

A couple is separated once one or or both of them has made the decision to end the relationship, said so, and then done something to carry through on the intention.

Often the decision to separate is made by both people, but it only takes one person decide to end a relationship, and a decision to separate doesn't require the other person's agreement. Everyone is entitled to separate if they wish to end a married or unmarried spousal relationship.

How do I know if I'm separated?

That's a tough one, because "separation" isn't defined in the Family Law Act. However, s. 3(4)(b) gives some guidance. It says that the court can consider "communication, by one spouse to the other spouse, of an intention to separate permanently" and "an action, taken by spouse, that demonstrates the spouse's intention to separate permanently" in deciding whether and when a couple have separated. In other words, the court can look at things you've said and things you've done to decide whether the relationship is over.

In general, the court will look at all of a couple's circumstances to decide whether they've separated. Has the couple stopped going out together? Have they told their friends that they've separated? Have they established separate bank accounts? Have they taken steps to deal with joint debt? Have they moved into different homes? Have they signed or started working on a separation agreement? Have they stopped having sex and spending the night with each other? Some separated couples will have done some of these things, others may have done them all.

Can we stay living in the same home?

Although many people move out when they separate, others separate and remain living under the same roof. In fact, s. 3(4)(a) expressly says that spouses can be separated even though they continue to live in the same home. A physical separation is not necessary to separate.

Frankly, continuing to live together isn't a bad idea as long as you can stand the company. It's a lot cheaper to stay in the same home with one set of bills than to move into two different homes each with its won set of bills to be paid.

Can I take stuff with me when I move out?

Sure, but be nice about it. Yes, you have a right to half the family property, which could include half the glasses, half the pots and half the furniture, but don't be mean and take half of these things to break up the sets. If you can't afford to replace the pots and pans, the cutlery, the plateware, the glasses and so on, take any extras first.

Also, don't take more than half of the family property unless there is no way to avoid it. This generally isn't a rush and the division of property and debt will be taken care of eventually. If your ex trashes the family property you leave behind, your ex can be made to compensate you for your share in any property that's been disposed of.

What you can certainly take is your own clothes and personal effects, anything your ex agrees you can take, and, if you have kids, a share of the children's clothing and toys.

Do I need to see a lawyer to separate?

No, absolutely not! The job of the family law lawyer is to help you resolve any legal issues resulting from the end of your relationship. The decision to separate can have legal consequences, and you might consider meeting with a lawyer to talk about those consequences, but separation itself is nothing we can help with.

But what's a legal separation?

There's no such thing as a "legal separation." (There used to be something called a "judicial separation," but that hasn't been available for a long time now. For more information about that, see my post "Little Known Family Law Facts #4".) Once you or your spouse or partner has left the family home or announced that the relationship is at an end, you're separated.

There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Okay, so what's a separation agreement then?

What people often mean by legal separation is a separation agreement. This is something else altogether. A separation agreement is a contract that people use to record their agreement about issues like how the children will be cared for, how their assets and debts will be divided and so forth. It has nothing to do with whether a couple have separated or not.

Separation agreements are not always necessary, especially if there's nothing to agree on, and you can't be forced to sign a separation agreement. See the Separation Agreements chapter of my wikibook for more information.

What's the date of our separation if we can't agree?

Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for unmarried spouses because of the time limits on claims for spousal support and the division of property and debt under the Family Law Act begin to run from the date of separation. For married spouses, these time limits begin to run from the date of divorce, which can be many years after the date of their separation.

Married spouses have no limitation periods to ask for spousal support under the Divorce Act.

The courts have talked about how to decide the date of separation. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties maintained a sexual relationship after they'd moved out and into separation homes. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."

A few other cases have also considered this issue. In Herman v. Herman, from the Nova Scotia Supreme Court in 1969, the court said this:

"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown." 

In Hills v. Hills, another case from the same court in the same year, the court said:

"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other." 

In McDorman v. McDorman, from New Brunswick Supreme Court in 1972, the court said:

"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, specially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown." 

Simplest of all, the Ontario Court of Appeal in 1970 in a cased called Lachman v. Lachman said:

"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist." 

What's desertion? 

Desertion is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, that arose after one spouse had abandoned the other for at least three years "without just cause." This ground of divorce has long since been abolished. These days we just rely on separation for a period of at least one year to get a divorce order.

Can I still have sex with my spouse after we've separated?

Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated. While it might cause some emotional difficulties, like prolonging the amount of time it takes to recover from a relationship that's broken down, there's nothing legally wrong with having sex with your spouse or partner. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the court decides that the care and control of the children should be managed, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into this sort of conduct in determining these issues.

The only thing you really need to think about is if you are married and are asking the court to make a divorce order based on your spouse's adultery or cruelty. If you have sex with your spouse after you've made the claim for divorce, you could be considered to have forgiven your spouse for his or her conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery or cruelty.

Can I start a relationship with someone else after we've separated?

Yup. Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider your relationship to have ended and whatever obligation you have to remain monogamous along with it. If you're married, you won't be divorced until you get a court order, but the marital aspects of your relationship and the attendant expectations of monogamy will be considered to be at an end.

Having sex with someone else will not have an impact on how the court decides that the care and control of the children should be managed, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into this sort of conduct in determining these issues.

Is having sex with someone else after we've separated adultery? 

Only married spouses can commit adultery. If you're married it is technically adultery to have sex with anyone other than your spouse while you are married, even after you've separated. However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can sex with someone else after separation be a ground for divorce?

Only married spouses need to get divorced. You cannot sue for divorce based on your own adultery. However, if your ex isn't happy that you're having sex with someone else, you are technically committing adultery which could be used as a ground for divorce.

Speaking of adultery, is it a criminal offence? Can I be charged with adultery?

Adultery on its own is not a criminal offence; it's not something that can see you can be criminally charged for.

Separation, Divorce or Restructuring?: An Argument for the Latter

The words we use when talking about legal concepts carry a lot more meaning than the dictionary definition of those words; the words we use often reveal something about how we think about those ideas and the fog of cultural values with which they are associated. Language has a surprising impact on how we understand and interact with the world, and I am often astonished by how much my perception of a particular legal concept can change simply by choosing different words to talk about it.

Take, for example, the language we use to describe the care of children after separation. (I'm choosing my words intentionally here.) The federal Divorce Act talks about these legal concepts in terms of "custody" and "access." This was the language used in the original Divorce Act, which became law in 1968, and was a lazy, unevolved borrowing of the terminology used in the first commonwealth legislation on divorce, the United Kingdom's Divorce and Matrimonial Causes Act of 1857. British Columbia's former Family Relations Act, which became law in 1972, talked about custody and access as well, but included an additional term, "guardianship."

What's custody, then, and what's a custodian, a person who has custody of something? In civil law, custody means the right to possess and control an object. In criminal law, custody means the lawful detention of a person against his or her will. However, custody also carries with it somewhat of a flavour of an obligation to care for the person or thing that the custodian controls. The criminal sense of custody implies a duty to attend to and protect the person in custody, and the civil sense can sometimes imply a duty of preservation.

This duty of care business lies at the heart of guardianship, a concept which comes from the civil law of the Roman Empire and first made its way into English law by way of the Guardians in Socage Act of 1267. Although a guardian can be a guardian of property — this is essentially what a trustee does — we usually use the term in relation to persons, and in family law this means a duty to see to the wellbeing of a child and the preservation of the child's property.

Under the Family Relations Act, however, guardianship took a back seat to custody, largely because the Divorce Act only spoke of custody and the Divorce Act is paramount legislation, meaning that when the two laws conflict, the federal law wins. This had the effect of focussing the legal arguments of separated parents on the possession, rather than the care, of their children. Four things flowed from this in terms of the cultural values relating to separation:

1. Custody was often seen as a property right, which distracted parents and lawyers from the best interests and wellbeing of the parents'  children.  

2. The "right" in question belonged to the parent rather than to the child.  

3. Arguments about custody often resolved into an all-or-nothing proposition, which dramatically heightened the perceived consequences of "winning" and "losing" a custody battle and caused parents to invest tremendous importance in the outcome. 

4. The role of the parent who wound up only with access was inevitably trivialized relative to that of the parent who had custody.

Thankfully, at some point in the early 2000s family law lawyers drafting agreements and, somewhat later, orders, began using less conflict-laden words to describe the legal concepts involved in custody, access and guardianship. Access started to be discussed as "the parent's time with the child," "the time the child is with the parent," or better yet "parenting time" and "caregiving time." Guardianship was framed as "parenting responsibilities" and "decision-making duties." Custody could be referred to as "the primary residence of the child" or "the home where the child usually lives," or something to a similar effect.

This sort of language held the virtues of being child-focussed, rather than parent-focussed, and of talking about the care of children in terms each parent could get behind. It also had the effect of transitioning custody from an all-or-nothing choice between polar alternatives to a more fluid range of potential arrangements. (It was, in my experience, far easier for my clients to agree that the other parent would have the child's primary residence — in appropriate circumstances! — plus a certain amount of time with the child than to agree that the other parent would have custody of the child.) Most importantly, it also made family law disputes easier to settle by pulling the schismatic venom from the old language used to describe the care of children.

What was most interesting, in my view, was that the judges dealing with family law matters got on board with the new approach to language in fairly short order. There were plenty of legal arguments to be made that "primary residence" did not mean custody and that "parental decision-making" did not imply the range of legal rights involved in guardianship, yet these arguments rarely saw the light of day. Judges were actually prepared to make and endorse orders using this sort of language rather than the mildewed and conflictual language of custody and access.

The point I'm trying to make here is that this change of language had a profound impact on how lawyers, mediators, arbitrators and judges approached disputes about children, and it had a consequential impact on how parents viewed these disputes as well. Ultimately, this helped to decrease conflict between parents and made it easier to settle arguments that might have escalated out of control using the old terminology. Interestingly, the new language eventually received the government's seal of approval in 2011 with the new Family Law Act, which talks about parents who are the guardians of the children and in that capacity have "parental responsibilities" and enjoy "parenting time" with their children.

There's another change of language I would like to propose which concerns how we think of family breakdown, particularly in the context of family law.

"Separation," "divorce" and even euphemisms like "family breakdown," "splitting up" and "breaking down" are all ways of talking about the end of a romantic relationship, and reveal quite a lot about how we think about, and the fog of cultural values we associate with, the end of such relationships. These terms are all synonyms for severing, disconnecting, detaching, cutting off, sundering and a host of similar ideas; they imply an terminal ending, the cessation of one state and the commencement of another, entirely different state.

Conceptualizing family breakdown as a conclusive rupture of what was once a whole is fine for couples who are casually dating or in a more serious cohabiting relationship but childless. After all, the people in these relationships have a reasonable interest in entering new relationships and moving on with their lives. However, this way of thinking about family breakdown strikes me as problematic for couples that are financially interdependent and couples who have children, particularly for the latter.

Parents rarely have the luxury of watching their former partner ride off into the sunset and washing their hands of the relationship. Whether the child was intended or not, becoming a parent entails a lifelong commitment to care for and nurture that child and almost always necessitates a lifelong relationship with the child's other parent, and this is where the wheels fall off the concept of family breakdown as terminal end: the legal end of the parents' relationship might be the child's emancipation and achievement of financial dependence, but the emotional end is rarely so definitively achieved. Most parents want to be there when their adult child marries, becomes seriously ill, has a child, graduates university, declares bankruptcy or receives professional accolades. As a result, not only does a parent's relationship with a child never disconnect, detach, sunder or rupture, neither do most parents' relationships with each other.

It's not only emotionally unhealthy to conceptualize the breakdown of parents' relationships as a termination, it's legally unrealistic as well. I worry that thinking of final orders in family law matters involving children as actually "final" is self-deceptive and sometimes grossly optimistic. (This is one of the things that makes family law so different from other areas of the civil law, where cases have a both a beginning and an actual, conclusive end.)

A few years ago, I was talking to Jerry McHale Q.C., a former assistant deputy ministry of the British Columbia Ministry of Justice and presently the Lam Chair in Law and Public Policy at the University of Victoria, about justice reform and he described family justice as essentially involving the "restructuring" of families, and this is the change of language I propose.

Although I'd probably practiced family law for ten years by the time of this conversation, Jerry's insight, as simple as it was, crystallized my approach to family law. It elegantly points out that where a family includes children, the "family" does not separate or divorce or breakdown. Families restructure, and my job as a family law lawyer, mediator and arbitrator was to help families restructure and reorganize themselves. My job was to help my clients work out: how the same pool of property and debt would be used and managed by the couple now that they were living apart; how the same financial inputs that the couple had before living apart would be spent maintaining two separate homes; and, how the same parenting resources and commitments that the couple had while living together would be allocated and optimized now that the couple were living apart.

In essence, thinking of separation and family law dispute resolution processes as "restructuring" recognizes the continuation of the separated family as a family, although a family living in two different homes. I can think of at least five benefits that might arise from the constellation of values this way of thinking suggests:

1. It encourages a recognition and holistic view of the multiple relationships that exist within the family, between parents, between siblings and between parents and children. 

2. It discourages an adversarial approach by recognizing the continuing existence of the family and by framing separation as a transition rather than a termination. 

3. It discourages positional attitudes based on self-interest by recognizing that the constituent elements, financial and parental, that supported the family before separation are the same and only constituent elements available to support the family after separation.

 4. It expands the circle of interested parties, normally limited to the parents who are the combatants in the legal dispute, to include their children.

5. It encourages the legal and mental health professionals involved in family law to conceptualize their roles as supporting the family as a whole through its transition from one home to two, rather than as advancing the interests of only one member of that family.

This seems to me to be a healthier approach to separation and dispute resolution, an approach that is child-centred and emphasizes the wellness of the changing family as a whole, than the present approach which is predicated on conflict and dwells more on the self-interest of the individual parents than on the interests of their children. What do you think?

CBA Publishes Family Law Resources

The Canadian Bar Association, the national association of Canadian lawyers, has just published an excellent resource from its national family law section and number of materials directed at the public further to its Equal Justice Initiative. (The CBA's Access to Justice Committee was another product of this Initiative, you may recall, and published its final report, Reaching Equal Justice Report: An Invitation to Envision and Act (PDF), in November 2013.)

Legal Health Checks

In a new resources page on its website, beneath the compelling banner "Law. You. Check it out.", the CBA says:

"An important part of improving access to justice is to ensure people have the information and tools they need to avoid legal problems in the first place, or to prevent those problems from becoming bigger than they might have been. As part of the CBA’s Reaching Equal Justice initiative, CBA is offering 6 Legal Health Checks for the public. ... The goal of the Checks is to encourage people to recognize legal problems early, and to take action when they do identify them. For lawyers, these materials are a way to start conversations with people about the law, how to get legal help and how to work effectively with a lawyer."

The "checks" are smartly-designed, one- or two-page documents that provide cursory information about different legal issues and encourage people to get legal advice. Five Steps to Legal Wellness (PDF), for example, tells people to deal with legal problems when they come up, keep paperwork like contracts, get help right away, get advice from a lawyer and remain calm when discussing the problem. Heady stuff.

On family law subjects, On My Own: Youth (PDF) says that sex without consent is a crime, warns against sharing explicit photographs and warns that "having a baby means financial and other consequences for both parents until the baby grows up." How to Avoid Surprises (PDF) cautions that being in a romantic relationship can have consequences and encourages people to get legal advice "before you live together, before you have a child, before you get married, when your marriage or common-law partnership is ending." 

Breaking Up (PDF), a concise one-page document, talks about the financial consequences of separation and encourages people to "speak to a lawyer when you are calm" and to use the lawyer for "legal advice, not counselling." A companion sheet, Breaking Up: Parenting (PDF), another one-pager, tells people that "by getting legal help with parenting decisions" they can focus on children's needs, avoid conflict, protect themselves and find lasting solutions.

I'm a staunch supporter of public legal information and public legal education, but with the greatest of respect I'm not sure what what the six checks are going to accomplish, or whether they will "encourage people to recognize legal problems early, and to take action" as intended. The materials on family law matters are brief and insubstantial, and provide little by way of legal information except to recommend speaking to a lawyer. Of course everyone with a legal problem, real or potential, ought to speak to a lawyer, but here is what Canada's Chief Justice said when addressing an access to justice conference in Toronto in February 2011:

"Do we have adequate access to justice? It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system."

And there's the rub.

Tax Matters Toolkit

The new material from the CBA's national family law section, a group for members who practice family law, is a resource called Tax Matters Toolkit: Separation and Divorce (PDF) that is published in two versions, one aimed at family law lawyers and one aimed at their clients. The client resource is short but jam-packed with useful information about the tax issues that come up when a relationship breaks down. It talks about:

• how and when the Canada Revenue Agency must be told about changes in marital status
• knowing when potential tax issues are worth the cost of speaking to a tax specialist
• the CRA's definitions of important terms like "child," "common law partner," "principle residence," "separation" and "shared custody"
• sharing RRSPs and other kinds of pension plans and pension funds

The resource also provides a list — complete with links! — of important CRA forms and describes what the forms are meant to accomplish. 

The resource does not talk about common but very complicated tax problems like tax arrears and potential taxes owing for present and past years, planning spousal support for the maximum tax advantage or sharing the value of family companies, but that's entirely understandable. Those issues can be very, very complicated and generally do require expert advice.

Good job, family law section!

The Essential Family Law Bookshelf

Here are a selection of books that I've stumbled into over the years and found very helpful in my work as a family law litigator, mediator, arbitrator and collaborative practitioner. Most links will take you to the Amazon page for each book.

Separation and Parenting After Separation

Renegotiating Family Relationships: Divorce, Child Custody and Mediation, Dr Robert Emery

This is a great book written by a fellow who's been in the trenches as a mediator. It talks about the psychology of separation, the grieving cycle, children's experience of separation and conflict, and how spouses can be renegotiate their roles as parents following the breakdown of their relationship.

The Truth About Children and Divorce, Dr Robert Emery

This was the first of Dr Emery's books that I happened to read, and I think predates Renegotiating Family Relationships. It is an excellent book that focusses on the emotional dimensions about separation, but also provides a lot of practical advice about dealing with children, making parenting plans and figuring out how both parents can remain engaged in parenting the children after separation. This book provides a lot of insight into how people process separation and deal with strong feelings like anger.

Befriending Your Ex After Divorce: Making Life Better for You, Your Kids and, Yes, Your Ex, Dr Judith Ruskay Rabinor

This book is first and foremost about building a productive, healthy parenting relationship with a former spouse, and is written by a psychologist who draws on her own experience of divorce and remarriage. Separation and parental conflict can be so terribly difficult for children, and one of the strongest buffers parents can give them is a healthy, productive and cooperative parenting relationship. If you're separating and you have children, read this book. 

The Bright Side: Surviving Your Parents' Divorce, Max Sindell

This book is written for children by a person whose parents' split when he was six. The book talks about the author's experiences about his parents' separation, their new relationships and his own relationships with step-parents and step-siblings. It gives some really practical advice to children about how they can avoid being caught in the middle of their parents' dispute. 

Helping Your Kids cope with Divorce the Sandcastles Way, Gary Neuman

This book provides a lot of really helpful information about the nuts and bolts of parenting after separation, with helpful tips about communicating with the other parent, children development, children's reactions to separation as they age, how to tell children about the separation and developing age-appropriate parenting plans.

Courts and Conflict

High Conflict People in Legal Disputes, Bill Eddy

This is book is written by a fellow trained as a lawyer, mediator and social worker and draws heavily on his clinical experience to talk about the sorts of personalities and personality disorders that drive conflict in family law disputes. The book talks about how high-conflict personalities can be identified, managed and how their disputes can ultimately be resolved. This is an essential book for lawyers and other dispute resolution professionals.

Tug of War: A Judge's Verdict on Separation, Custody Battles and the Bitter Realities of Family Court, Justice Harvey Brownstone

The author of this book is a provincial court judge in Ontario, prior to which he worked as a family law lawyer for legal aid. It offers some practical guidance on when you should go to court and when you shouldn't, how to hire a lawyer, and arguments and attitudes that don't work and those that do. It primarily addresses disputes about parenting and child support but should be required reading for anyone thinking of going to court about children.

Dispute Resolution Outside of Court

Collaborative Practice: Deepening the Dialogue, Nancy Cameron Q.C.

This thoughtful book is written by a lawyer who was one of the leaders who brought mediation and collaborative settlement processes to British Columbia, and talks about the profound differences between the resolution of family law matters in court and through more humane out of court processes. It provides helpful tips for the resolution of family law disputes in a collaborative manner and offers in-depth discussions of the roles of coaches, child specialists and financial specialists. This book is primarily directed toward lawyers and mental health professionals.

Family Law Arbitration in Canada, Anne Wilton and Gary Joseph

This book is written for lawyers and others trained in arbitration. It provides a soup-to-nuts overview of the arbitration process, from choosing an arbitrator, to pre-hearing meetings and screenings, arbitration agreements, the conduct of hearings and interim and final awards. This book is as useful, family-law specific follow-up to anyone who has taken training as a generalist arbitrator and wishes to specialize.

Fathers' Rights Groups

Defiant Dads: Father's Rights Activists in America, Jocelyn Crowley

I tracked down this book after experiencing a number of unpleasant attacks by men who were annoyed about my position on bill that would amend the Divorce Act to include a presumption of shared parenting. The author of this book, a professor of public policy, interviewed a coupe of hundred people involved in the father's rights movement in the USA. Her book discusses those interviews and offers a fairly well balanced review of their criticisms of the child support and custody laws, their organization, their attitudes and their strategies to achieve change. It is well worth reading.

Family Law

Family Law Sourcebook for British Columbia, Continuing Legal Education Society of BC

This book is a critical resource for lawyers, but is available to the general public through courthouse libraries. It offers an exhaustive discussion of the major family law subjects, from parenting plans to property division to adoption, all well backed up by comprehensive references to the case law and statute law.

JP Boyd on Family Law, Clicklaw

This wikibook is based on my old website, JP Boyd's BC Family Law Resource, and is fully up to date on the current legislation. It's written in plain language and covers almost every issue in family law in British Columbia, with pop-up definitions for common legal words and phrases, helpful "how do I?" tips and court forms for download. Copies of the book are available at every public library in the province, and all or some of the wikibook may be downloaded as a PDF file or an EPUB format for readers, or printed by an on-demand printer.

If there are books that have made an impact on you as a lawyer, mental health professional or person leaving a relationship, please post a comment with the name of the book, the name of the author and a short description of the contents of the book and why you liked it.