Family Law Agreements and Independent Legal Advice

A colleague recently asked a question about the custom of sending people for legal advice before they sign agreements and I realized that, in light of certain provisions of the new Family Law Act, a refresher on the topic might be helpful.

Why it's important to get legal advice before signing an agreement

When people sign agreements about family law matters, lawyers always want those people to get legal advice about the meaning and effect of their agreements. (This is often called "independent legal advice," because each party is getting their own legal advice from their own lawyer, independent of the other party.) In fairness, this oughtn't be just a lawyer thing, it's a damn good idea in general.

Family law agreements, you see, are unusually important, sometimes more so than other kinds of agreement. Family law agreements:

• are contracts, and, like any other contract, you're stuck with it if you sign it;
• usually don't have an end-date and are meant to last forever;
• contain terms that can have life-long impacts, like about the payment of spousal support and the division of property and pensions, 
• deal with the most important things in people's lives, like how their children are cared for; and,
• usually represent a compromise of people's legal rights, and sometimes the terms of an agreement are different than what the result might have been at trial.

As well, the agreements family law lawyers draft tend to be long and on the complicated side. Although the meat-and-potatoes stuff about who keeps the car, how the kids will be looked after and how the family home will be sold is all in there, lawyers add a lot of other stuff that is intended to strengthen an agreement against all the different ways an agreement can be attacked in court. This isn't about lawyers being neurotic arseholes, it's about making sure that the agreement stands the test of time and that everyones' interests are protected. Among other things, you'll see clauses that say things like this:

• the agreement is a final settlement of all legal issues resulting from the relationship, and each person releases the other from all claims they might have as a result of the relationship;
• each person has received independent legal advice or had the opportunity to get it;
• each person has read the entire agreement carefully and fully understands what the agreement says and how it limits his or her legal rights;
• each person has completely disclosed all information relevant to the negotiation of the agreement, and each person is satisfied with the other person's disclosure;
• each person is signing the agreement voluntarily and hasn't been pressured into signing it by the other person;
• if a part of the agreement is found to be void, the rest of the agreement remains binding on the parties;
• a person's failure to insist that other do something as the agreement requires does not mean that he or she has waived that requirement;
• the written agreement is the entire agreement, and there aren't any oral agreements that go along with it; and,
• the agreement can be changed in the future, but only in writing.

There are many other clauses that you'll see in agreements prepared by lawyers, but these are the biggies.

As a result, it is really, really important important that you see a lawyer to get advice about any agreement before you sign it. You need to understand not just the nuts and bolts of the agreement, like who has to do what and when it has to be done by, you have to understand all of the legal gobbledegook too.

Do you have to get legal advice?

No, in all honesty, you don't... although getting legal advice is a really good idea.

In general, each person has an interest in making sure that the other person gets legal advice about the agreement. It sounds strange, I know, that you'd want you ex to see a lawyer and get advice about an agreement, but you do. You want to stop your ex from ever saying something like "gosh, I had no idea that the agreement said that, I never would've signed it if I knew that!" Now, agreements are presumed to be binding on you, whether you've read it or understood it or not, but there are circumstances when not having had legal advice makes it a bit easier to weasel out of an agreement.

You especially want the other person to get legal advice if the agreement is unfair to him or her!

What do you get when you get legal advice?

If you've read through to this point, you know that the lawyer you see will tell you about the meaning and legal effect of the agreement. In addition to this, the lawyer should get a lot of information from you about yourself, your family and the circumstances of your relationship and then tell you:

• about the laws and legal principles that apply to your situation;
• about the range of likely results if you and your ex took your dispute to court instead of trying to settle it;
• about the risks and cost involved in taking your dispute to court;
• whether the terms of the agreement are within the range of likely results and whether, taking all of terms of the agreement and all of your circumstances into account, the agreement is fair;
• whether there are any problems with how the agreement is drafted; 
• whether any changes are necessary to the agreement to make it fairer to you;
• whether any changes are necessary to the agreement to better defend it against attempts to set it aside in the future; and
• whether you should sign the agreement or not.

It's important to understand that the lawyer can't prevent you or your ex from signing the agreement. My job was just to explain the law and offer an opinion about the agreement, and although there were a few occasions when an agreement was so horribly unfair that I refused to witness a client's signature, I always respected my clients' right to settle a dispute.

What's the Family Law Act got to do with legal advice?

Firstly, the Family Law Act says that agreements are just as good as orders in settling a family law problem. As well, s. 6 says that agreements are binding on the people who've signed them, whether the agreement is filed in court or not, or whether the parties had advice from a lawyer or not.

Secondly and more importantly, the act says that the court can't make an order about spousal support or the division of property and debt if the parties have an agreement on those issues until the agreement has been set aside. This is really important; the old Family Relations Act didn't give this much heft to family law agreements! The parts of the act that talk about setting agreements on these issues aside, s. 93 for property and debt and s. 164 for spousal support, both say this:

On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; 

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; 

(c) a spouse did not understand the nature or consequences of the agreement; 

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

It's easy enough to read between the lines here and see why legal advice is so important. Legal advice will:

• help you know whether enough disclosure was made to reveal all of the property and debts;
• tell you whether all of the important information was probably disclosed;
• tell you whether either person is being taken advantage of;
• stop each person from relying on their ignorance of the law or the agreement if they try to have the agreement set aside in the future;
• stop each person from claiming that they did not understand the nature or consequences of the agreement if they try to have it set aside in the future; and,
• identify any problems with the agreement under the law of contracts that might cause all or part of it to be set aside in the future.

If you're signing a family law agreement that talks about spousal support, property or debt and you want that agreement to last, getting independent legal advice is a must.

How do you prove you've each had legal advice?

To be binding, each person must sign the agreement; there's normally a space for each party to sign at the end of the agreement, along with a space to write in the place where the agreement was signed and the date it was signed. Sections 93 and 164 also ask that each person's signature be witnessed by someone else, and that's normally also how lawyers prefer agreements to be executed.

What I used to do was send my agreements to the other person complete with a "Lawyer's Certificate of Independent Legal Advice" and a "Confirmation of Independent Legal Advice" for each party. The idea was that the client would sign the agreement and the confirmation, and the lawyer would witness the client's execution of the agreement and sign the certificate. The complete agreement would consist of the text of the agreement itself, two certificate and two confirmations, all of which would be stapled together for each copy of the agreement. This way, I had positive proof that each party had received independent advice.

Now, to be fair, these things aren't necessary. The certificate and confirmation are just forms I made up, but I they helped make sure that the agreement would stand the test of time ...and they also discouraged people from trying to set them aside. This is what my certificate said:

"I certify that I have been retained by ___________ to advise and have advised her with regard to the signing of the Agreement. 

"On the ________ day of ___________ , 2015 I fully read over and explained to ___________ the said Agreement, and informed her of the contents of the said Agreement as it effects her rights under the Family Law Act, the Divorce Act and the Wills, Estates and Succession Act, and she expressed herself to me as understanding the Agreement on and in light of her present and future circumstances as well as the present and future circumstances of ___________ .  ___________ indicated to me, and it appeared to me, that she entered into the Agreement willingly and not under any duress or stress exerted by ___________  and without any pressure or undue influence or deception on the part of ___________ or anyone on his behalf. 

"I believe that upon executing the Agreement, ___________ was fully advised and informed with regard to all the foregoing matters mentioned and may fairly be said to have acted independently therein."

You can see how this hits the highlights of ss. 93 and 164. The agreement was fully explained to the client, the client knew how the agreement would impact her now and in the future, the client said she understood the agreement, it seemed to me that she understood the agreement, and the client wasn't pressured into signing the agreement.

My confirmation was even simpler:

"I, ___________ , the above-named, state that I have read over the above Certificate of Independent Legal Advice and that the statements therein said to be made by me are true."

Feel free to use these if you'd like, just make sure that you translate them into English first.

Do you have to have a certificate of legal advice?

Nope. Having one just helps to prove that the person received legal advice, but it's not mandatory and there are other ways of proving that the person had legal advice.

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.

Setting Aside Agreements: Helpful resource from West Coast LEAF

I've just stumbled across a new — well, new to me — booklet from West Coast LEAF, Separation Agreements: Your Right to Fairness (PDF). This resource is aimed at people who have signed a separation agreement but have had second thoughts and want to set it aside because inadequate disclosure was made when the agreement was signed or because there was a power imbalance between the parties to the agreement. I know of lots of resources geared to helping people make separation agreements and file them in court, but this is the first I know of to focus on setting agreements aside.

In a nutshell, separating spouses and parents can resolve the issues arising from the end of their relationship by reaching an informal agreement, making a formal agreement, like a separation agreement, where everything is written down and the agreement is signed before a witness, or getting a court order. Informal agreements can be problematic because it can hard to prove the terms of the deal in the event of a disagreement. Going to court can be horribly expensive and take a great deal of time, and the decision will be made by someone who knows very little about the family.

Separation agreements, on the other hand, are a great way to go because the parties are able to negotiate the best solution to their particular problems in light of their particular circumstances; separation agreements can even include terms that can't be included in court orders. On top of this, agreements about parenting, child support and spousal support can be filed in court and enforced as if they were court orders, and the Family Law Act prohibits the court from making orders about spousal support and property and debt in the face of an agreement unless it sets the agreement aside.

Key to all of this, however, is the idea of negotiation, specifically fair negotiation, and this is where West Coast LEAF's special expertise comes in. West Coast LEAF was an intervenor in the famous (to family law lawyers) case of Rick v Brandsema, in which the Supreme Court of Canada said that separation agreements, even those signed after having legal advice, can be set aside if: one of the spouses made inadequate, incomplete or misleading disclosure of his or her finances; or, one of the spouses took advantage of a particular weakness or vulnerability of the other spouse, such as the spouse's ignorance, emotional state or precarious mental health.

The decision in Rick was profoundly influential on how the part of the Family Law Act about the setting aside of agreements about property was written. Here are the important parts of s. 93 of the act:

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; 

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; 

(c) a spouse did not understand the nature or consequences of the agreement; 

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement. 

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made; 

(b) the intention of the spouses, in making the agreement, to achieve certainty; 

(c) the degree to which the spouses relied on the terms of the agreement.

Subsection (3) summarizes the key points in Rick and these points are what West Coast LEAF deals with in its booklet. Setting Aside Agreements covers:

• the reasons why a separation agreement could be set aside;
• how to fairly negotiate a separation agreement;
• how to provide proper financial disclosure; and,
• how to work with a lawyer if you need to go to court to have a separation agreement set aside.

Obviously, Setting Aside Agreements can't cover all that there is to say on the subject, but it's a good, useful and very accessible starting point. My wikibook, JP Boyd on Family Law, is another place to get some basic information and discusses setting aside agreements on:

• cohabitation agreements, marriage agreements and separation agreements;
• enforcing agreements and the general principles of setting aside or changing agreements;
• changing agreements about children;
• changing agreements about child support and spousal support; and,
• changing agreements about property and debt.

Extraordinary Court of Appeal Decision: Rights of Guardianship May Survive Agreement for Sole Custody

The British Columbia Court of Appeal has released its decision in Re British Columbia Birth Registration No. 2004-59-020158, a fascinating case that has some very important implications for orders and agreements for sole custody made before the new Family Law Act came into effect on 18 March 2013. As usual, understanding the important point this case makes requires a bit of an explanation, however let me start with the facts.

Background

In a nutshell, this case is about a mother's application for the adoption of her child by her new spouse and, because the father was none too happy with the idea, an order that the necessity of his agreement with the adoption be waived.

The mother and father separated in 2006 when their son was a year and a half old. A few months later they signed a separation agreement — this is important — giving the mother sole custody of the child and unspecified access to the father. This is what the agreement said:

CUSTODY, ACCESS AND GUARDIANSHIP 

2. [The mother] will have custody of [the child]. 

3. [The father] will have reasonable access to [the child]. 

4. If [the father] and [the mother] are at any time unable to agree on the particulars of access or on a variation of access, either may apply to a court of competent jurisdiction for directions. 

5. All terms as to custody, access and guardianship may be varied by the written consent of both Parties duly witnessed and signed as an Amendment to this Agreement.

Although the father initially saw his son almost every weekend, the frequency of his visits began to decrease after the mother started a new relationship. The mother and father divorced in 2010, and around the same time, the mother and her new partner took the child and moved out of town. The father was not told of the move and had no idea where his son was living until litigation ensued. The mother married her partner in 2011, and the couple started a law suit in the Supreme Court seeking an order that he adopt the child and a decision as to whether the father remained a guardian of the child after the parties' signed their separation agreement.

The Decision at Trial and a Parenthetical Comment on a Psychologist's Recommendation

The father, who had started a law suit in the Provincial Court for an order giving him specified access to his son, objected to the adoption application. As a result, the mother's claim went to trial, and her claim was heard together with the father's claim for access. The trial judge dismissed the mother's law suit and made an order that the father have access to the child; the trial judge decided that it was unnecessary to determine whether the father was a guardian of the child or not. The mother appealed the decision.

(I pause here to note that, at trial, a psychologist recommended that the mother's new spouse be allowed to adopt the child and that the father should have some limited access to the child. This was the psychologist's testimony:

"... in the report [I prepared] I actually make the point that perhaps there could be an agreement almost quid pro quo that if [the father] would allow the adoption, then there would be a reciprocal cooperation on the part of [the mother] to facilitate this type of arrangement to take place. ... I was hoping that — that by saying that there would be a reciprocity where [the father] would agree on adoption in exchange for [the mother] promising to — to allow and facilitate and arrangement that would allow [the child] to know [the father] and the paternal family, that — that if there was that reciprocal agreement, that it would make sense that — that — because what he wants is — meaning [the father] — what he wants is he wants to be a part of the child's life, he wants to have some input, he wants the child to know him, and he wants to know the child. But if — if in exchange for that, he gave up the ability and allowed them to adopt, then perhaps we could — you know, there might have been some — some agreement in that regard ..."

In other words, the psychologist was recommending that the father should give up his status as the child's father, and the rights that go along with that status, in exchange for contact with the child. This recommendation trespasses upon the offensive; the father had a right to seek contact with the child merely because of his status as the child's father, and he is now being asked to give up that status to obtain the access he ought to have had in any event? The Court of Appeal shared my concern:

"[31] Frankly, this notion of [the father] consenting to the adoption in consideration for future contact rights is troubling. I do not view a natural parent’s interest in consenting or not to the adoption of their child as something that should be required to be bartered away for the right to be peripherally involved in the child’s future. Yet that is what [the mother] was proposing and it is precisely what [the psychologist] was effectively recommending. ...

"[33] With respect, it is inappropriate to effectively require (or even to simply encourage) [the father] to give up his parental ties to the child as the price for gaining [the mother's] 'co-operation' in facilitating his future contact with the child, to which, prima facie, he is entitled at law."

Let me climb off my high horse and return to the main topic. I apologize for the long-winded diversion.)

The Decision on Appeal

According to the judgment of the Court of Appeal, written by the province's Chief Justice, the mother's main argument on appeal was that the trial judge effectively ignored the child's best interests by dwelling on the mother's behaviour in "isolating the child" from contact with the father. However, the main issue for the court was the not the adoption claim, which it dismissed, but the question of the father's standing as a guardian of the child, and this is where the decision gets really interesting.

First of all, remember that the parties' agreement talked about custody and access but really didn't say anything about guardianship, even though that section of their agreement was titled "Custody, Access and Guardianship" and paragraph five said "all terms as to custody, access and guardianship may be varied by the written consent of both Parties." This agreement was made when the old Family Relations Act was the law of the province. Section 27 of that act set out certain presumptions about how guardianship was to be shared during and after the parents' relationship (important bits in bold):

(1) ... whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders. 

(2) ... if the father and mother of a child are or have been married to each other and are living separate and apart, 

(a) they are joint guardians of the estate of the child, and

(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.

Since the parties' agreement didn't make any decisions about guardianship, this meant, according to both the trial judge and the Court of Appeal, that the father continued to be a guardian of the estate of the child, under s. 27(2)(a). Of course, since the agreement gave custody to the mother, she had "care and control of the child" and was therefore the guardian of the person of the child under s. 27(2)(b).

(Time for another diversion. "Guardianship" of a child has always — well, at least since 1660 — had two components, guardianship of the person of the child and guardianship of the estate of the child. Someone who is the guardian of the person of a child has the right to make decisions about where the child goes to school, how health care issues are managed, about the child's language and culture, how the child is disciplined, and so on; essentially, the guardian of the person of the child decides how the child is raised. Someone who is the guardian of the estate of a child is entitled to make decisions about how the child's property is managed, in the manner of a trustee of that property.)

This leads to the question of the parties' status under the new Family Law Act. Sections 251 and 252 are the main parts of the new act that translate orders and agreements made under the old act. Section 251, which applies here, says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The parties' agreement gave the mother custody; she is clearly a guardian of the child. The court considered the father's status by comparing the rights of a guardian of the estate of a child under the old Family Relations Act to the rights of a "guardian" under the new Family Law Act. 

This is what s. 25 of the Family Relations Act said about the rights involved in guardianship:

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

Frequent readers will recall that these two acts are the UK Tenures Abolition Act of 1660 and the Guardianship of Infants Act of 1887. (I talk about these acts in my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act" and in some of my other writing on this issue.) After considering an amendment to this part of the Family Relations Act that never came into effect, the court concluded that the rights involved in being a guardian of the estate are similar to those of a trustee:

"[50] ... Equating the guardian of the estate with a trustee of the child’s property recognizes the obligation of a guardian of the estate to protect and manage the child’s property for the benefit of the child and the right of the guardian of the estate to control the child’s property to that end."

The decisions guardians can make under the new act are "parental responsibilities," and are listed at s. 41. Of all of those parental responsibilities, the court held that the rights of a guardian of the estate of a child were most similar to those found at s-s. (k):

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and 

(ii) identifying, advancing and protecting the child's legal and financial interests;

To this point, then, the Court of Appeal has reached these three conclusions:

· If you were married and have an agreement — or, by extension, an order — that gives the other parent sole custody but doesn't say anything about guardianship, you are a guardian of the estate of the child under s. 27(2)(a) of the Family Relations Act. 

· As the guardian of the estate of the child, you are a trustee of the child's property and must "protect and manage the child’s property for the benefit of the child," and you have the right "to control the child's property" for that purpose.  

· These rights and duties are the same as having the parental responsibility, under s. 41(k) of the Family Law Act, for handling legal proceedings on behalf of the child and protecting the child's financial interests.

Now we need to get back to the translation provisions of s. 251. The parties had an agreement giving the mother sole custody, but the agreement didn't decide anything about guardianship. This is what the court said about the intention of s. 251 and its effect on the rights distributed by the parties' agreement:

"[58] Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...

"[59] ... did the separation agreement, properly construed, take away [the father's] then vested (under s. 27 of the FLA) right to guardianship of the estate of the child? I think not. In my view, one should interpret the separation agreement, by referring to guardianship without more, as implicitly continuing the guardianship regime then in place which afforded joint guardianship to [the mother] and [the father] of the estate of the child. Section 251 does not affect this status."

And now we can add a fourth point to the court's conclusions:

· If you are guardian of the estate of a child, as a result of an old agreement or order, you are a guardian under the Family Law Act, with the parental responsibility set out at s. 41(k), and other parental responsibilities under s-ss. (h), (i) and (j) as may be necessary for you to act under s-s. (k).

However, whether you're a guardian as a result of an old agreement or order under s. 251 or because you're one of the people who are presumed to be guardians under s. 39 of the new act, your standing can also be taken away under s. 51, which says this:

(1) On application, a court may

(a) appoint a person as a child's guardian, or 

(b) ... terminate a person's guardianship of a child.

And in this case, the the court decided it should be taken away:

"[60] In my view, it would not be in the best interests of the child in all the circumstances to grant [the father] parental rights under s. 41(h), (i), (j) and (k) of the FLA."

At the end of the day, the result from the Court of Appeal was that the mother's application for the adoption of the child by her new spouse was refused. The father's standing as a guardian was terminated — although the court didn't quite put it that way, which is curious — and the order from trial giving the father contact with the child was continued, but on terms which included requiring the mother and her spouse to keep the father informed of certain decisions they might make in respect of the child.

Conclusion

This decision is enormously important, because I expect that many formerly married parents who had agreements and orders that just talked about sole custody and access probably read s. 251 as meaning that the parent with sole custody became the child's only guardian under the Family Law Act. The Court of Appeal has made it clear that such orders do not disturb the other parent's standing under s. 27 of the Family Relations Act as a guardian of the estate of the child, and that as a result of this standing, the other parent continues as a guardian under the Family Law Act, albeit as a guardian whose only parental responsibility is that found at s. 41(k).

The effect of continuing as a guardian under the Family Law Act is profound, for the following reasons.

· Only guardians have parental responsibilities under the act. (s. 40(1)) 

· As a guardian, you have parenting time with the child, not contact. Someone with parenting time also has "the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child." (s. 42(2)) 

· Only a guardian can apply to court for "directions respecting an issue affecting the child." (s. 49) 

· Only a guardian can object to another guardian's plans to move with the child, or apply for an order that the move be prevented. (ss. 68, 69(2))

Nothing in the Family Law Act restricts these rights because a guardian has a limited range of parental responsibilities. These rights are available simply because of the person's standing as a guardian.

However, some caution may perhaps be warranted. In my view, the scheme of the new act splits up the traditional concepts of "guardianship of the person of the child" and "guardianship of the estate of the child." Normally, when an agreement or order under the old act gave someone "guardianship," he or she had both kinds of guardianship, unless the agreement or order expressly said something different. Under the new act, however, it seems to me that a "guardian" is really a guardian only of the person of the child. 

Part 8 of the new act is titled "Children's Property," and deals with a person's rights and duties about children's property that are essentially the rights and duties of someone who is the guardian of the estate of the child. This is what s. 176 says:

Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,

(a) a trustee of the child's property, or 

(b) entitled to give a valid discharge on receiving property on behalf of the child.

If the child's property is worth more than than $10,000 — the value of "small property," set out at s. 24 of the Family Law Act Regulation — a guardian is not automatically the trustee of the child's property. The trustee, whether a guardian, a parent or someone else, must be appointed by court order under s. 179; the child's guardians cannot make an agreement that someone will be the trustee of the child's property, the appointment can only be by court order.

As a result of Part 8 of the new act, it is not clear to me that someone who is the guardian of the estate of a child is necessarily a guardian with the power to exercise parental responsibilities. Without a doubt, the powers set out at s. 41 are rights that stem from a person's standing as guardianship of the person of a child, but the power of guardianship over children's estates is not a part of those rights and doesn't result merely from being the child's guardian. Part 8 provides a complete and separate code for the management of children's property that is not, or is scarcely, impinged upon by the parental responsibility of "identifying, advancing and protecting" the child's "financial interests" under s. 41(k)(ii).

My thanks to my colleague, James Cudmore, for bringing this important case to my attention.

Supreme Court Releases Decision on Property Claims, Separation Agreements and Indepedent Legal Advice

The Supreme Court has recently released its decision in Giebelhaus v. Giebelhaus, a case in which the husband asked the court to divide property, in the face of a separation agreement he had signed on the subject, under s. 65 of the Family Relation Act. As usual, I'm not so much interested in the particular facts of the case as I am in the court's review of the law.

The court reviewed two important decisions, J.K.T. v. A.J.T., a recent case of our Supreme Court, and Hartshorne v. Hartshorne, a 2004 case of the Supreme Court of Canada. In J.K.T., the court outlined the principles to be considered on applications under s. 65:

[88] ... the onus is on the party seeking to vary the agreement to establish that it is unfair; fairness is not to be equated with equality or near equality. ... 

[89] ... in relation to the division of family property, that such a division may have to be unequal in order to be fair. ... 

[90] ... the question of fairness in family property matters ought not to be approached from a commercial perspective. It is necessary to examine whether the agreement reached was actually fair. ... 

[91] ... s. 65 of the FRA does not permit the Court to set aside agreements; it only authorizes reapportionment on the basis of unfairness.

The court then quotes Hartshorne for the basic test to determine the fairness of marriage agreements (important bits in bold):

[47] ... in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support. The court must then, in consideration of those factors listed in s. 65(1) of the FRA, make a determination as to whether the contract operates unfairly. At this second stage, consideration must be given to the parties’ personal and financial circumstances, and in particular to the manner in which these circumstances evolved over time. Where the current circumstances were within the contemplation of the parties at the time the Agreement was formed, and where their Agreement and circumstances surrounding it reflect consideration and response to these circumstances, then the plaintiff’s burden to establish unfairness is heavier. Thus, consideration of the factors listed in s. 65(1) of the FRA, taken together, would have to reveal that the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances. This approach, in my view, accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties’ intentions, on the one hand, and assurance of an equitable result, on the other.

The court in Giebelhaus then applied the first stage of the Hartshorne test to see what the parties would be left with under their separation agreement and concluded that the husband would be left with assets totalling $130,265 while the wife would receive, including the family home, assets totalling $242,564.

The court then applied the second stage of the Hartshorne test to see whether the separation agreement was fair in light of the factors set out in s. 65(1) of the Family Relations Act. This is what s. 65(1) says:

If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to

(a) the duration of the marriage, 

(b) the duration of the period during which the spouses have lived separate and apart, 

(c) the date when property was acquired or disposed of, 

(d) the extent to which property was acquired by one spouse through inheritance or gift, 

(e) the needs of each spouse to become or remain economically independent and self sufficient, or 

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,

the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.

Considering the length of the parties' 14 year marriage, the needs of each spouse to become or remain economically independent and self sufficient, and the general s. 65(1)(f) catch-all factor, "any other circumstances relating to the capacity or liabilities of a spouse," the court concluded that the separation agreement was unfair and its division of assets therefore "outside of a reasonable range." The court awarded the husband a further $45,000, leaving him with $175,265 and the wife with $197,564... not exactly an equal division but significantly better than the original agreement.

There was, however, one other wrinkle in this case: the husband had obtained independent legal advice in signing the agreement — a fact relied on by the wife in her defence of the agreement. The husband claimed the advice he received was in adequate and that, as a result, he did not fully understand the wife's financial circumstances when he made the decision to sign the separation agreement.

This gave the court the opportunity to discuss the meaning and necessary content of independent legal advice when executing family law agreements (cites omitted):

[44]         The meaning of independent legal advice in the family law context was well described by Pitfield J. in Gurney v. Gurney, 2000 BCSC 6:

[29]      In the family law context, providing independent legal advice must mean more than being satisfied that a party understands the nature and contents of the agreement and consents to its terms. The solicitor should make inquiries of the party so as to be fully apprised of the circumstances surrounding the agreement. The party should be advised of his or her legal rights and obligations in relation to the subject matter of the agreement and advised of the consequences associated with a refusal to sign. The solicitor should offer his or her opinion on the question of whether it is appropriate for the party to sign the agreement in all of the circumstances. It is only with that kind of advice that the party can make an informed decision about the advisability of entering into the agreement as opposed to pursuing some other course. ...

[45] In Bradshaw v. Bradshaw, 2011 BCSC 1103, which refers to Gurney, the Court summarized the principles concerning independent legal advice in the family law context as follows:

[49] Independent legal advice, in the family law context, is important because it ensures that the spouses are fully aware of their statutory and common law rights and obligations. It safeguards against one spouse taking unfair advantage of another and redresses or at least minimizes disparity of bargaining power between them... In Gurney, Pitfield J. found that "the lack of independent legal advice in this case is not fatal and the agreement should not be set aside because of its absence" (at para. 30). Indeed, the absence of independent legal advice will not, by itself, invalidate an agreement ... Nor will the receipt of independent legal advice automatically cure or neutralize one or both spouses' vulnerabilities; in other words, it will not protect an otherwise invalid or unfair contract ...

[46] I return to s. 65(1)(f) and the factors of the capacities or liabilities of a spouse. I have found the claimant did not have an accurate understanding of the respondent’s income as he had no idea of the value of her pensions. ... In the words of Bradshaw, he was not "fully aware" of his rights and obligations. When these facts are taken into account, I conclude the agreement is unfair. The respondent received the matrimonial home and retained all her pensions. She gave up little. The claimant gave up much. In the result, the statute permits the Court to divide the property appropriately.

The lesson from Giebelhaus for counsel is simple:

• ensure you understand the circumstances surrounding the agreement;
• advise the client as to his or her rights and obligations in relation to the topics covered in the agreement;
• advise the client as to the consequences of not signing the agreement; and,
• give the client your opinion as to whether it is appropriate for the client to sign the agreement in all of the circumstances.

The lesson for parties seeking independent legal advice is more important:

• not having legal advice will not necessarily let you out of an agreement you have signed; however,
• having legal advice will not leave you stuck with an invalid or unfair contract, especially if the advice you got was substandard.

In other words, although ensuring that your spouse gets independent legal advice will help to prevent your spouse from claiming "I didn't know what I was doing" to get out of an agreement, if the agreement is fundamentally bad or unfair, all the legal advice in the world won't bullet-proof your agreement.