New Website for Children

The BC Justice Education Society, formerly the Law Courts Education Society of BC, has launched a new website, www.kidsbc.ca, aimed at children whose parents are splitting up. The website offers lots of information about separation and the legal process, as well as information about children's experience of and feelings during separation, how separation may impact on their home life, and how their parents might react to separation. I am very impressed with this website.

The new website should nicely complement the provincial government's existing efforts in the area, available at www.familieschange.ca.

Government Announces Implementation of New Family Law Rules

The provincial government announced today that new Supreme Court family law rules will come into effect on 1 July 2010.

The new rules for family law matters are one of the recommendations flowing from the Family Justice Reform Working Group's 2005 report, A New Justice System for Children and Families (PDF). A draft of the new rules was posted on the website of the Justice Review Task Force in 2008 for comment and consultation.

The new rules are intended to reduce expense by gearing the complexity of the litigation to the complexity of the case, limiting rights of discovery and requiring experts to serve the court rather than the parties. Family law cases will be more tightly managed and mediation will be mandatory on the request of a party. A completely new set of court forms will standardize family law pleadings and make them more accessible. A summary of other highlights (PDF) is available from the JRTF.

Update

The new rules (PDF) have now been published. Be careful about printing them, they run to some 382 pages.

Lawyers' Magazine Publishes Rate Survey

Canadian Lawyer has published its 2009 survey of lawyers' fees, which includes the rates charged for common family law activities broken down by region and size of firm.

Supreme Court of Canada issues Important Judgment

On Friday 26 June 2009 the Supreme Court of Canada released its judgment in A.C., A.C. and A.C. v. Director of Child and Family Services, 2009 SCC 30. The case involves a young woman who, at the age of 14, was forced to undergo a blood transfusion against her wishes in the course of her medical treatment. The child, a Jehovah's Witness, had refused to give her consent to the treatment, whereupon, following a psychiatric assessment, the child was apprehended by the Manitoba child welfare agency which authorized the transfusion on her behalf.

Although this case was largely argued as a breach of the child's rights under the Charter of Rights and Freedoms, it will likely have a huge impact on family law as a result of the court's discussion of the best interests of the child and the weight to be given to a child's wishes in assessing the child's best interests.

Under s. 16(8) the Divorce Act, the child's "best interests" are the sole criterion to be taken into account in making decisions about access and custody, "as determined by reference to the condition, means, needs and other circumstances of the child." The Family Relations Act says much the same thing at s. 24(1), although the FRA provides a more lengthy list of factors and says that the court should also consider the views of the child, "if appropriate."

In family law cases, the courts have been willing to consider the preferences of even very young children, but the amount of weight the court will give those preferences depends entirely on the child's age, development and maturity. Most of the time, this means that the court will listen to wishes of any child able to express them and be increasingly inclined to follow those wishes as the child grows up; the court will take the wishes of 11 year olds quite seriously, it will take the preferences of 14 year olds still more seriously, and it will almost always do what 16 year olds want.

In A.C., the child was 14 years old, almost 15. The Manitoba child welfare law said that the court could authorize medical treatment it believed to be in the child's best interests, with the wishes of children 16 or older being determinative of the issue. As a result, the court's power to force the child to have the transfusion rested wholly on the court's assessment of the child's best interests knowing, however, that the child objected to the treatment.

The court held that the best interests test in the Manitoba law should be considered to operate on a sliding scale, with the child's preferences being given more weight as the child grows older, subject to the court's assessment of the child's maturity. The degree of scrutiny applied in this assessment, however, should increase with the importance of the decision to be made, taking into account:

1. the intellectual capacity and degree of sophistication of child to understand the decision to be made;
   
2. the stability of the child's views and whether they are a true reflection of the child's values and beliefs;
3. the impact of the child's lifestyle, family relationships and social affiliations on the child's ability to exercise independent judgment; and,
   
4. the existence of any emotional or psychiatric vulnerabilities impacting on the child's decision-making ability.
   

Neither the Divorce Act nor the Family Relations Act prescribe an age at which a child's wishes must be taken into account when a decision must be made about the child's parenting arrangements, and even the FRA, which says the court may take those wishes into account doesn't say they must be taken into account. As a result, the case law is somewhat muddy on when and whether children's wishes must be heard, how much weight should be given to them when they are heard. This decision should give critical guidance on all of these issues.

Alberta Minister Pronounces upon the Proper Raising of Children

The CBC has reported that Alberta's Finance Minister, Iris Evans, has pronounced upon the raising of children in a recent speech to the Economic Club of Canada. According to the CBC, Minister Evans said that good parenting means that "when you're raising children, you don't both go off to work and leave them for somebody else to raise."

Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income! One solution would be to raise the Canada Child Tax Benefit and the National Child Benefit Supplement to a level that would enable families to leave a parent in the home, but I'm not sure that such a suggestion would have much appeal to a conservative finance minister.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

These search terms are all about marriage and divorce.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> consequences of getting remarried without getting divorced

This one's easy enough: your new marriage won't be valid.

Without a divorce, any other marriage is technically bigamous under the Criminal Code yet also void under the common law.
>> how many years after separation are you considered divorced

Never. Until you get that divorce order you're still married. No marriage is over until a court has made a divorce order, no matter how much time has passed since the spouses separated.

>> is it ungodly to attend a person's third marriage

I don't normally pronounce on religious issues, but this search term was too hard to pass up. If it is ungodly, perhaps you need to find a new religion if you're really prepared to put your religious scruples above your loyalty to a friend and a celebration of his or her happiness.
>> use of the divorce act for common law relationships canada
Also easy: none.

The federal Divorce Act only applies to people who are married to each other or who used to be married to each other. Unmarried couples, including couples who qualify as common-law, only have the provincial Family Relations Act and a few other laws to rely on in resolving the issues arising from their separation.
>> common law marriage divorce needed to end relationship

Common-law couples are not married; there is no such thing as a common-law marriage.

All "common-law" status means is that a couple qualify as "spouses" within the meaning of a particular law. Some laws, like the Family Relations Act and many other provincial laws, define a spouse as someone who is married or someone who has lived in a "marriage-like relationship" with another person for at least two years. Other laws have different definitions of spouse. Most federal laws, for example, only require that the couple have lived together for one year, while laws about welfare eligibility require an even briefer period of cohabitation.

Since common-law couples aren't married, there's no need for them to get a divorce to formally end their relationships. A common-law relationship is over when the couple separates. There's no magic to it, nor any need for a court order.

Why you DON'T want a cohabitation agreement

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information. I've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.

Questions about cohabitation agreements come up fairly often in my line of work, and it seems that I'm constantly dealing with this one particular issue: how cohabitation agreements do and do not help to protect assets brought into a relationship. This issue's come up yet again, and I thought I'd write about it in a broader context.

People often think they need a cohabitation agreement when they move in with someone in romantic relationship. That's not true; you don't need a marriage agreement when you marry someone and you don't need a cohabitation agreement when you begin to live with someone.

That being said, there are a handful of good reasons why you might want a cohabitation agreement: if you or your partner are bringing children into the relationship; if you or your partner want to ward against the chance of a spousal support claim when the relationship ends; or, if you want to protect the property you're bringing into the relationship. The last reason is the most common reason people want a cohabitation agreement, and while this strategy may work in other provinces, it doesn't work in British Columbia. In fact, it makes things worse. A lot worse.

To be completely clear: you do not want a cohabitation agreement if you live in British Columbia and the agreement is meant to protect property. Here's why.

The British Columbia Family Relations Act treats married and unmarried couples very differently when it comes to property. For married couples, the act says they should both have an equal share of all of the family assets, regardless of who owns the asset or whether it was brought into the relationship or bought afterward, and most assets will qualify as family assets. For unmarried couples, including common-law couples, the act says nothing at all; unmarried couples are expressly excluded from the parts of the FRA that divide property. Unmarried couples are limited to making property claims under the law of trusts, and that usually produces results that are far, far less generous than the equal split married couples get under the FRA.

In summary...

1. Married Couples: The Family Relations Act presumes that each spouse gets half of all the assets, and almost all assets wind up being part of the pool of assets that get divided. Although this presumption can be challenged, most of the time the assets are split equally or near-equally.

2. Unmarried Couples: The parts of the Family Relations Act that deal with the division of assets don't apply to unmarried couples. Unmarried couples can only make claims against each other's property under the law of trusts, and those claims are tough to prove and hardly ever result in a division close to the division that would have resulted if the couple had been married

This is where s. 120.1 of the Family Relations Act comes into things.

Under s. 120.1, the parts of the FRA that divide property between married couples apply to agreements between unmarried couples that deal with property and would be a marriage agreement had the couple been married. Making things worse, under s. 65 the court has the express authority to order a division of assets other than a marriage agreement calls for if it thinks the terms of the marriage agreement are unfair... and what's unfair? Often a division of assets that is different than the equal split prescribed for married couples.

In other words: if an unmarried couple make a cohabitation agreement about property, the rules about property division for married couples apply to the agreement and the court can divide property using the standards that apply to married couples.

Now, instead of the crappy trust law claims an unmarried couple would have had to suffer through in making a claim to divide assets, the couple have all the benefits of the rules that apply to married couples, including the presumption that a fair division of assets is an equal division of assets. This is hardly the effect most unmarried couples assume a cohabitation agreement is going to have; instead of protecting their assets from division, the agreement has exposed the assets to a potential claim which is much worse than the claim that would have been available without the agreement! A bit counterintuitive, isn't it?

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information. I've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.