The Department of Justice has just published a paper I've written on the Spousal Support Advisory Guidelines. The paper is a rather technical look at the data required to run Advisory Guidelines calculations and the determination of income for spousal support purposes, and reviews the various tax deductions, benefits and credits allowed by the Advisory Guidelines.
I'm afraid that my paper isn't very accessible as it is was written for lawyers and judges who are already familiar with and use the Advisory Guidelines frequently, nevertheless it's publicly available for anyone interested in reading it.
This blog provides updates on important developments in family law in British Columbia and news about changes to the legislation, court procedures and court rules applicable to family law cases and is curated by Collaborative Divorce Vancouver
07 January 2010
07 December 2009
Website Begins Integration of New Rules
On 1 July 2010, the current Supreme Court Rules of Court will be replaced with two new sets of rules, one for general civil litigation and one for family law matters (PDF). This isn't the sort of tinkering we're used to seeing every summer, this is a stem to stern overhaul with brand new rules and new court forms. Even the names of the parties are changing!
The Rules of Court are tremendously important. They guide the conduct of every aspect of the law suits before the court, from how service is effected to the scheduling of applications to the production of documents and the remedies available when production is inadequate. When the rules change, it's a big deal. It also means that websites like mine need to have overhauls of their own to make sure that they stay current.
A new section of my website, Rules 101, offers an overview of the new family law rules and will be updated from time to time as I'm able to compile the information. So far, Rules 101 has a summary of procedure under the new rules, new rules' deadlines and timelines, and a description of the process for chambers proceedings.
My July 2009 post Government Announces Implementation of New Family Law Rules discusses the new rules and has links to all of the relevant background documents.
The Rules of Court are tremendously important. They guide the conduct of every aspect of the law suits before the court, from how service is effected to the scheduling of applications to the production of documents and the remedies available when production is inadequate. When the rules change, it's a big deal. It also means that websites like mine need to have overhauls of their own to make sure that they stay current.
A new section of my website, Rules 101, offers an overview of the new family law rules and will be updated from time to time as I'm able to compile the information. So far, Rules 101 has a summary of procedure under the new rules, new rules' deadlines and timelines, and a description of the process for chambers proceedings.
My July 2009 post Government Announces Implementation of New Family Law Rules discusses the new rules and has links to all of the relevant background documents.
04 December 2009
More Cuts to Legal Aid, Part 2
I have just learned that a number of family law lawyers and criminal law lawyers in Kamloops have formed a committee and voted to withdraw duty counsel services in response to the recent cuts to legal aid including the closure of their regional Legal Services Society office, and the impact the cuts will have on access to justice. The spokespeople for the committee are Graham Kay (250-374-1989) and David Dundee (250-828-9998).
The strike will begin on 11 January 2010 and affect Provincial Court criminal law matters and Provincial Court and Supreme Court family law matters in Kamloops and Merit.
Read Part 1.
The strike will begin on 11 January 2010 and affect Provincial Court criminal law matters and Provincial Court and Supreme Court family law matters in Kamloops and Merit.
Read Part 1.
03 December 2009
Section 15 Reports
Important Update: The Family Law Act came into force in March 2013 and replaced the Family Relations Act, which is the subject of this post. The parts of the old act that talked about custody and access reports are now found at s. 211 of the new act, and those reports are now called "section 211 assessments" or "needs of the child assessments." I have added a brief comment on the new act to the end of this post.
"Custody and access reports," "custody assessments" and "section fifteen reports" are some of the names given to reports prepared pursuant to s. 15 of the Family Relations Act. The purpose and scope of these reports can be a bit confusing, because they seem to be treated differently in the Provincial Court and the Supreme Court, because different sorts of people prepare them, and because the scope of s. 15 is really quite broad.
The Family Relations Act
Section 15 says, in part, this:
Most of the time, people want a s. 15 report for the assessor's recommendations about things like where the children should live most of the time and the optimum parenting schedule. It can happen, however, that people want the assessor to look at a specific problem such as a parent's drinking, mental instability, drug use or personality disorder, and comment on how the issue affects the person's capacity to parent.
Provincial Court
Most of the time, s. 15 reports prepared in matters before the Provincial Court are prepared by family justice counsellors, employees of the Provincial Court who have some training in conducting custody and access assessments, and usually have a background in social work or psychology.
These reports are free but they can take a terribly long time to complete, anywhere from six months to one year or more, depending on which courthouse the parties are at. (Surrey and Vancouver are notoriously overburdened courts.) A private psychologist or psychiatrist could probably get the assessment done faster, but they charge for their work and I'd expect that the cost would start at about $3,000 and go up to $9,000 or more, depending on the circumstances and the scope of the report.
The court can order that a s. 15 report be prepared at the first appearance, at any other appearance before trial and at a family case conference. The court generally won't order s. 15 reports at trial... by then it's too late, and ordering the report would only serve to delay the trial.
Supreme Court
Section 15 reports prepared for the Supreme Court are usually done by private psychologists and psychiatrists. Although they come at a pretty significant cost, they can usually be prepared within three to six months, depending on the issues.
The court can order that a s. 15 report be prepared at a judicial case conference or at any application brought before trial. The court will not order the preparation of a s. 15 report at or on the brink of trial.
Rules of Evidence
In the Supreme Court, s. 15 reports stand as expert evidence. "Expert evidence" is different than other kinds of evidence, because it offers an expert opinion about the best parenting arrangements for the children.
(Normally, the only kind of evidence allowed at trial is evidence of facts: "I saw Ted outside the bank," "I have a blue Chevy Pinto," "last year we went to Chilliwack for Christmas," and so on. Opinion evidence is usually about beliefs, assumptions and conjectures: "aliens live on Jupiter," "my cat is better than your cat," or "Jerry is a bad father." Expert opinion evidence is about an expert's professional conclusions about an issue or question beyond most people's knowledge: "foundations need to be drilled to a minimum depth of 6m in Prince George to avoid frost heaves," "gerbils have an average I.Q. of 15" or "the kinematic viscosity of single non-winter grade oils is measured at a temperature of 100 °C in units of mm²/s.")
As expert evidence, s. 15 reports are often subject to the special provisions of Rule 40A about who is an expert and who isn't, introducing expert reports at trial and cross-examining the person preparing the report. The Supreme Court is usually very strict about how evidence is admitted at trial and how expert reports can be used.
Things are a bit different in the Provincial Court. Rule 11(2) deals with s. 15 reports, and this rule doesn't describe persons preparing s. 15 reports as "experts." In fact, the rule seems to treat s. 15 reports entirely differently than expert evidence, which is dealt with in Rule 11(3) to (8). This is probably why family justice counsellors are able to prepare s. 15 reports for Provincial Court: they are not expected to qualify as experts and s. 15 reports are treated differently than the usual sort of expert evidence.
Views of the Child Reports
Views of the child reports are a kind of s. 15 report in which the assessor is hired to meet with the child and report back to the court or the parents on the child's views and wishes. These reports can be prepared by experts (psychologists or psychiatrists) or by non-experts (lawyers, court workers and so forth). They do not recommend or suggest a certain parenting arrangement; they are primarily geared toward finding out what the child's preferences are, even though there's no guarantee that the court will do what the child wants.
Although it probably seems that these reports don't have a great deal of utility, in fact they are very helpful when a dispute is primarily focused on parenting issues, especially in the context of settlement discussions at case conferences. Parents can be profoundly influenced toward reason by a third-party's report of their children's wishes.
When these reports are prepared by experts, the expert will sometimes administer some tests to determine the child's truthfulness and honesty, and the expert may look at difficult issues such as whether the child has been alienated from a parent or whether the child has been coached to have a certain preference.
Non-experts don't have the special skills to administer tests like that or to give opinions about whether a child has been influenced by a parent or alienated against a parent. As a consequence, while their reports are much more limited in scope and usefulness, they are generally much cheaper and faster to obtain than expert's views of the child reports: you're not paying for an expert and the assessor isn't going into an expert's level of detail.
There is another difference between expert's and non-expert's views of the child reports that has to do with the previous discussion about evidence. Expert's views of the child reports are expert evidence that can be used in both the Provincial Court and the Supreme Court. Although non-expert's views of the child reports can be used in the Provincial Court because of the special provisions of Rule 11(2), non-experts won't meet Rule 40A's test for admissibility and can't be used as evidence in the Supreme Court.
Summary
Section 15 is really quite broad. It can be used to make an application for almost any kind of report in a family law case... (I was about to say "except for medical reports and financial reports," but nothing in s. 15 really limits the sort of report the court can order to just issues about children, does it?) ...but is most often used to get an assessment of the parenting arrangements that would be best for the children.
Custody and access reports can take a lot of time to process in the Provincial Court but they are usually free. Custody and access reports can be had much more quickly in the Supreme Court, but since they're done by private psychiatrists and psychologists they can be very expensive.
Views of the child reports are an underused species of s. 15 report, and are usually must faster and cheaper to obtain than custody and access reports, particularly where the report is prepared by a non-expert. They do not have the same persuasive effect on the court that custody and access reports have, however, and non-expert views of the child reports may not be admissible in Supreme Court matters.
Update: 24 August 2014
Lots has happened since I wrote this post in 2009. Most importantly, the Family Law Act has replaced the Family Relations Act, and what used to be known as "section 15 reports" are now known as "section 211 assessments" or "needs of the child assessments."
Assessments under the new law can be a lot more focussed than they were under the old law. The new law says that the court can appoint a family justice counsellor, social worker or "another person who is approved by the court," normally psychologists or registered clinical counsellors, to do report on the needs of a child, the views of the child and/or the ability and willingness of a party to meed the needs of the child. The old law just said that the court could order "an investigation into a family matter."
Here's what s. 211 of the new law says:
On another subject, I had the good fortune of presenting with Dr. Phil Stahl, a highly respected forensic psychologist practicing in Arizona, about shared parenting after separation at a recent conference. Dr. Stahl spoke about the scientific standards which should be expected of people preparing needs of the child assessments at a later section, and his talk was fascinating, to say the least. Dr. Stahl has just just published a book on this issue, which I am happy to recommend. Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony is available through the American Bar Association.
"Custody and access reports," "custody assessments" and "section fifteen reports" are some of the names given to reports prepared pursuant to s. 15 of the Family Relations Act. The purpose and scope of these reports can be a bit confusing, because they seem to be treated differently in the Provincial Court and the Supreme Court, because different sorts of people prepare them, and because the scope of s. 15 is really quite broad.
The Family Relations Act
Section 15 says, in part, this:
In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who
(a) has had no previous connection with the parties to the proceeding or to whom each party consents, and
(b) is a family counsellor, social worker or other person approved by the court for the purpose.
(2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.I've highlighted the bits that are particularly important for this discussion. Essentially, s. 15 says that the court can order that a report on any family issue be prepared by any person, in whatever manner the court directs, and the court can make an order that a report be prepared on its own initiative or on the application of a party.
Most of the time, people want a s. 15 report for the assessor's recommendations about things like where the children should live most of the time and the optimum parenting schedule. It can happen, however, that people want the assessor to look at a specific problem such as a parent's drinking, mental instability, drug use or personality disorder, and comment on how the issue affects the person's capacity to parent.
Provincial Court
Most of the time, s. 15 reports prepared in matters before the Provincial Court are prepared by family justice counsellors, employees of the Provincial Court who have some training in conducting custody and access assessments, and usually have a background in social work or psychology.
These reports are free but they can take a terribly long time to complete, anywhere from six months to one year or more, depending on which courthouse the parties are at. (Surrey and Vancouver are notoriously overburdened courts.) A private psychologist or psychiatrist could probably get the assessment done faster, but they charge for their work and I'd expect that the cost would start at about $3,000 and go up to $9,000 or more, depending on the circumstances and the scope of the report.
The court can order that a s. 15 report be prepared at the first appearance, at any other appearance before trial and at a family case conference. The court generally won't order s. 15 reports at trial... by then it's too late, and ordering the report would only serve to delay the trial.
Supreme Court
Section 15 reports prepared for the Supreme Court are usually done by private psychologists and psychiatrists. Although they come at a pretty significant cost, they can usually be prepared within three to six months, depending on the issues.
The court can order that a s. 15 report be prepared at a judicial case conference or at any application brought before trial. The court will not order the preparation of a s. 15 report at or on the brink of trial.
Rules of Evidence
In the Supreme Court, s. 15 reports stand as expert evidence. "Expert evidence" is different than other kinds of evidence, because it offers an expert opinion about the best parenting arrangements for the children.
(Normally, the only kind of evidence allowed at trial is evidence of facts: "I saw Ted outside the bank," "I have a blue Chevy Pinto," "last year we went to Chilliwack for Christmas," and so on. Opinion evidence is usually about beliefs, assumptions and conjectures: "aliens live on Jupiter," "my cat is better than your cat," or "Jerry is a bad father." Expert opinion evidence is about an expert's professional conclusions about an issue or question beyond most people's knowledge: "foundations need to be drilled to a minimum depth of 6m in Prince George to avoid frost heaves," "gerbils have an average I.Q. of 15" or "the kinematic viscosity of single non-winter grade oils is measured at a temperature of 100 °C in units of mm²/s.")
As expert evidence, s. 15 reports are often subject to the special provisions of Rule 40A about who is an expert and who isn't, introducing expert reports at trial and cross-examining the person preparing the report. The Supreme Court is usually very strict about how evidence is admitted at trial and how expert reports can be used.
Things are a bit different in the Provincial Court. Rule 11(2) deals with s. 15 reports, and this rule doesn't describe persons preparing s. 15 reports as "experts." In fact, the rule seems to treat s. 15 reports entirely differently than expert evidence, which is dealt with in Rule 11(3) to (8). This is probably why family justice counsellors are able to prepare s. 15 reports for Provincial Court: they are not expected to qualify as experts and s. 15 reports are treated differently than the usual sort of expert evidence.
Views of the Child Reports
Views of the child reports are a kind of s. 15 report in which the assessor is hired to meet with the child and report back to the court or the parents on the child's views and wishes. These reports can be prepared by experts (psychologists or psychiatrists) or by non-experts (lawyers, court workers and so forth). They do not recommend or suggest a certain parenting arrangement; they are primarily geared toward finding out what the child's preferences are, even though there's no guarantee that the court will do what the child wants.
Although it probably seems that these reports don't have a great deal of utility, in fact they are very helpful when a dispute is primarily focused on parenting issues, especially in the context of settlement discussions at case conferences. Parents can be profoundly influenced toward reason by a third-party's report of their children's wishes.
When these reports are prepared by experts, the expert will sometimes administer some tests to determine the child's truthfulness and honesty, and the expert may look at difficult issues such as whether the child has been alienated from a parent or whether the child has been coached to have a certain preference.
Non-experts don't have the special skills to administer tests like that or to give opinions about whether a child has been influenced by a parent or alienated against a parent. As a consequence, while their reports are much more limited in scope and usefulness, they are generally much cheaper and faster to obtain than expert's views of the child reports: you're not paying for an expert and the assessor isn't going into an expert's level of detail.
There is another difference between expert's and non-expert's views of the child reports that has to do with the previous discussion about evidence. Expert's views of the child reports are expert evidence that can be used in both the Provincial Court and the Supreme Court. Although non-expert's views of the child reports can be used in the Provincial Court because of the special provisions of Rule 11(2), non-experts won't meet Rule 40A's test for admissibility and can't be used as evidence in the Supreme Court.
Summary
Section 15 is really quite broad. It can be used to make an application for almost any kind of report in a family law case... (I was about to say "except for medical reports and financial reports," but nothing in s. 15 really limits the sort of report the court can order to just issues about children, does it?) ...but is most often used to get an assessment of the parenting arrangements that would be best for the children.
Custody and access reports can take a lot of time to process in the Provincial Court but they are usually free. Custody and access reports can be had much more quickly in the Supreme Court, but since they're done by private psychiatrists and psychologists they can be very expensive.
Views of the child reports are an underused species of s. 15 report, and are usually must faster and cheaper to obtain than custody and access reports, particularly where the report is prepared by a non-expert. They do not have the same persuasive effect on the court that custody and access reports have, however, and non-expert views of the child reports may not be admissible in Supreme Court matters.
Update: 24 August 2014
Lots has happened since I wrote this post in 2009. Most importantly, the Family Law Act has replaced the Family Relations Act, and what used to be known as "section 15 reports" are now known as "section 211 assessments" or "needs of the child assessments."
Assessments under the new law can be a lot more focussed than they were under the old law. The new law says that the court can appoint a family justice counsellor, social worker or "another person who is approved by the court," normally psychologists or registered clinical counsellors, to do report on the needs of a child, the views of the child and/or the ability and willingness of a party to meed the needs of the child. The old law just said that the court could order "an investigation into a family matter."
Here's what s. 211 of the new law says:
(1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:
(a) the needs of a child in relation to a family law dispute;
(b) the views of a child in relation to a family law dispute;
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.(2) A person appointed under subsection (1)
(a) must be a family justice counsellor, a social worker or another person approved by the court, and
(b) unless each party consents, must not have had any previous connection with the parties.(3) An application under this section may be made without notice to any other person.
(4) A person who carries out an assessment under this section must
(a) prepare a report respecting the results of the assessment,
(b) unless the court orders otherwise, give a copy of the report to each party, and
The new law improves on the old by:(c) give a copy of the report to the court.(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.
- emphasizing the child-centred nature of the assessor's enquiry,
- allowing the court to direct the assessor to consider the children's views, and
- focussing the enquiry on the ability of a party to meet the children's needs.
On another subject, I had the good fortune of presenting with Dr. Phil Stahl, a highly respected forensic psychologist practicing in Arizona, about shared parenting after separation at a recent conference. Dr. Stahl spoke about the scientific standards which should be expected of people preparing needs of the child assessments at a later section, and his talk was fascinating, to say the least. Dr. Stahl has just just published a book on this issue, which I am happy to recommend. Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony is available through the American Bar Association.
11 November 2009
More Cuts to Legal Aid, Part 1
The axe has fallen on the Legal Services Society once more. LSS, the organization which provides legal aid in this province, was first hit with funding cuts in 2002. Those cuts resulted in the scaling back of family law services and a refocusing of LSS's delivery model away from hands-on litigation assistance toward litigation advice and web- and telephone-based legal information services. On the bright side, this change resulted in a significant improvement of LSS's primary website and the development of a fantastic website on family law issues. On the less bright side, the funding of legal services for family law cases was nearly extinguished.
The new cuts will see the LawLINE advice service, the Community Advocate Support Line, and all but one of legal aid's regional offices by 1 April 2010. Although more than 50 staff members will lose their jobs and I understand that almost all of LSS's staff lawyers have been let go, LSS's executive director, Mark Benton, has said that service levels won't be affected.
An employees' group called Access to Justice has posted a news release about the cuts, a collection of links to other stories about the cuts and an online petition you can sign; please visit their website. LSS's 3 November 2009 news release is available here.
The new cuts will see the LawLINE advice service, the Community Advocate Support Line, and all but one of legal aid's regional offices by 1 April 2010. Although more than 50 staff members will lose their jobs and I understand that almost all of LSS's staff lawyers have been let go, LSS's executive director, Mark Benton, has said that service levels won't be affected.
An employees' group called Access to Justice has posted a news release about the cuts, a collection of links to other stories about the cuts and an online petition you can sign; please visit their website. LSS's 3 November 2009 news release is available here.
18 September 2009
What's "Without Prejudice" and What's Not
You'll often see certain lawyer's letters marked "without prejudice," and it's not always clear what "without prejudice" means, particularly for people who aren't lawyers. The question has recently come up in a file of mine, and I thought I'd take the opportunity to explain things.
"Without prejudice" protects settlement proposals
Because of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest is correspondence: the exchange of letters setting out the terms on which the lawyer's client would be prepared to settle the case.
As a general but not invariable rule, settling a file means finding a compromise between the parties' positions, which means that neither party gets everything he or she is looking for. Someone who is asking for sole guardianship might compromise and agree to an order for joint guardianship as long as he or she has the children's primary residence; someone who is asking for 70% of the family assets might compromise and agree to take half the family assets as long as spousal support is paid for a certain number of years.
Now, although compromise might be necessary for settlement, the position a party takes to achieve settlement is rarely the position that the party takes at trial. At trial, the person seeking sole guardianship is still going be demanding sole guardianship, and the person after the majority of the family assets is still going to be after the majority of the family assets. But if this is the case, which it usually is, people need a way to communicate settlement proposals without affecting their positions at trial. In other words, if you're suing for twelve 1972 Ford Pintos, you need to be able to propose settlement for six 1972 Ford Pintos and three 1973 Ford Pintos without being held to that position at trial.
This is where "without prejudice" letters come in. Marking a letter "without prejudice" protects the contents of the letter from being disclosed; the letter is being sent without prejudice to the party's position at trial.
To be clear, however, just marking a letter "without prejudice" isn't going to automatically exclude the letter from use at trial. To be excluded, the letter must actually contain a settlement proposal; as our Court of Appeal said in a 1984 case called Belanger v. Gilbert, "not all letters so marked are to be held inadmissible." In another appeal case, Schetky v. Cochrane, from 1918, the court set out what was required to protect "without prejudice" letters:
Costs
Proper "without prejudice" letters can't even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs. The English Court of Appeal summarized this point in a 1984 case called Cutts v. Head:
Subsequent letters not marked "without prejudice"
Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:
"With prejudice" letters are different than "without prejudice" letters. Such letters not only deny any claim of protection from production to the court, they say that the letter will be produced to the court.
Of course, because marking a letter "with prejudice" doesn't make the contents of the letter any more true, or any more compelling and persuasive to judge who reads it; in fact, it's not entirely clear what is achieved by marking a letter "with prejudice" apart from expressing the author's conviction about the importance or accuracy of the contents.
To put it another way, any letter not marked "without prejudice" is "with prejudice" by definition, in the sense that there's nothing stopping the letter from being shown to the court.
Summary
"Without prejudice" protects settlement proposals
Because of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest is correspondence: the exchange of letters setting out the terms on which the lawyer's client would be prepared to settle the case.
As a general but not invariable rule, settling a file means finding a compromise between the parties' positions, which means that neither party gets everything he or she is looking for. Someone who is asking for sole guardianship might compromise and agree to an order for joint guardianship as long as he or she has the children's primary residence; someone who is asking for 70% of the family assets might compromise and agree to take half the family assets as long as spousal support is paid for a certain number of years.
Now, although compromise might be necessary for settlement, the position a party takes to achieve settlement is rarely the position that the party takes at trial. At trial, the person seeking sole guardianship is still going be demanding sole guardianship, and the person after the majority of the family assets is still going to be after the majority of the family assets. But if this is the case, which it usually is, people need a way to communicate settlement proposals without affecting their positions at trial. In other words, if you're suing for twelve 1972 Ford Pintos, you need to be able to propose settlement for six 1972 Ford Pintos and three 1973 Ford Pintos without being held to that position at trial.
This is where "without prejudice" letters come in. Marking a letter "without prejudice" protects the contents of the letter from being disclosed; the letter is being sent without prejudice to the party's position at trial.
To be clear, however, just marking a letter "without prejudice" isn't going to automatically exclude the letter from use at trial. To be excluded, the letter must actually contain a settlement proposal; as our Court of Appeal said in a 1984 case called Belanger v. Gilbert, "not all letters so marked are to be held inadmissible." In another appeal case, Schetky v. Cochrane, from 1918, the court set out what was required to protect "without prejudice" letters:
"... the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation...
"... before the privilege arises two conditions must exist, viz.: (a) a dispute or negotiation between two or more parties; and (b) in which terms are offered"
A "without prejudice" letter that meets this test cannot be put into evidence, whether at trial or as an exhibit to an affidavit.
To be even more clear, it is only the parts of "without prejudice" letters proposing settlement that are protected. A letter that talks about the number of Ford Pintos required to achieve settlement as well as setting hearing dates and the colour of the author's pants, can certainly be be put into evidence about the hearing dates and the author's pants, as long as the portion dealing with the Pintos is blocked out.
Costs
Proper "without prejudice" letters can't even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs. The English Court of Appeal summarized this point in a 1984 case called Cutts v. Head:
"...the court is able to examine and consider such correspondence, where the offeror, in the body of the correspondence in issue, expressly reserves the right to bring the letter to the notice of the judge on the issue of costs after judgment."
(Letters like these are sometimes called Calderbank letters, in reference to the 1975 case from the English Court of Appeal which authorized this narrow exception, Calderbank v. Calderbank.)
Subsequent letters not marked "without prejudice"
Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:
Where the privilege exists, it covers not only the particular letter itself, but also all subsequent parts of the same correspondence on both sides, notwithstanding that they are not expressed to be “without prejudice," unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, where a letter offering terms, but not stated to be “without prejudice” is followed by another saying that the communications between the parties are to be “without prejudice” the former letter is protected."With prejudice" letters
"With prejudice" letters are different than "without prejudice" letters. Such letters not only deny any claim of protection from production to the court, they say that the letter will be produced to the court.
Of course, because marking a letter "with prejudice" doesn't make the contents of the letter any more true, or any more compelling and persuasive to judge who reads it; in fact, it's not entirely clear what is achieved by marking a letter "with prejudice" apart from expressing the author's conviction about the importance or accuracy of the contents.
To put it another way, any letter not marked "without prejudice" is "with prejudice" by definition, in the sense that there's nothing stopping the letter from being shown to the court.
Summary
- "Without prejudice" letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
- The phrase "without prejudice" only protects settlement proposals. Marking your laundry list or any other communication "without prejudice" isn't going to stop the document from being used in court.
- The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out.
- If a "without prejudice" letter is going to be used to argue costs down the road, the letter needs to say so or it can't be used to argue costs.
07 August 2009
What Custody and Guardianship Really Mean
Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.
It's difficult to tell the difference between the rights and duties custody involves from the rights and duties associated with guardianship. This confusion is aggravated because the Divorce Act only talks about custody, but the Family Relations Act talks about both custody and guardianship, and because we get a lot of misleading information about these issues from American media. The explanation, however, involves a history lesson.
The first law on divorce was the UK Divorce and Matrimonial Causes Act, passed in 1857, which became part of the laws of British Columbia as a result of the proclamation of governor Sir James Douglas on 19 November 1858. The Divorce and Matrimonial Causes Act disposed of the whole issue about children in one sentence, which gave the court the authority to make an order about custody at the time it was making an order about divorce, if it thought the custody order was appropriate.
So far, we're still talking about a concept everyone will understand. Custody, within the meaning of the first Divorce Act, describes the right of a parent to direct his or her child's life and make decisions about education, health care, moral instruction, sports activities and so forth, as well as the duty of a parent to provide his or her child with the necessities of life and an education.
Guardianship was first discussed in legislation in British Columbia's Apprentices and Minors Act, passed at some point in the late 1880s. This law discussed the duty of masters to provide the apprenticed children in their care with the necessities of life and an education, and the right of masters to benefit from the child's labour and make decisions about the child's education, health care and so on. Later on, these basic provisions about guardianship were moved into the Infants Act and, by 1930, into the Equal Guardianship of Infants Act.
Guardianship under these laws concerns the rights and duties people have in respect of the children who are in their care. These rights and duties are exactly the rights and duties that parents have, the difference is that these rights and duties are being exercised by someone who isn't a parent. In other words, guardianship is about the parental rights and duties exercised by non-parents.
So far, this still makes a lot of sense, especially when you think about the sort of people who might be guardians today: the person you might ask to care for your children in the event of your death, or the people with whom children are placed when they have been seized from their parents by the government.
Problems started cropping up in 1978 when the provincial government decided to dump all of the laws about separated families into a single piece of legislation, the Family Relations Act. In this new law, custody and guardianship were discussed side by side, and the law now said that "any person" - not just parents - could apply for custody, and that "any person" - not just non-parents - could apply for guardianship. Since parents could now apply for both custody and guardianship parents did apply for both custody and guardianship, and it became difficult to differentiate between the rights and duties included in "custody" and the rights and duties included in "guardianship."
The best that could be said was that "guardianship" now contained the nuts and bolts of parenting: the right to say where the child went to school, the right to direct the course of the child's medical treatment, the right to say where the child would live, the right to say what the child would wear to school and the right to get information from the child's doctors, teachers and coaches. "Custody" suggested a bundle of rights sort of like ownership, in the sense of having the home where the child lived most often.
Things got even worse as time went on, however, because the courts began to award joint custody without requiring parents to share their children's time equally or even near-equally. I, for example, represent parents who live all over the world but have joint custody of children who live here in British Columbia. None of these parents see their children more frequently than once or twice per month, and most see their children only once or twice per year, yet they all have joint custody of their children.
As a result of this evolution in the law, there is no connection at all between the amount of time a parent has with a child and the likelihood of that parent having joint custody or sole custody of the child, or no custodial rights at all. "Joint custody" now really only means that a parent is at least an okay sort of parent, and that he or she gets along relatively well with the other parent. That's about it.
Since so much significance was now lost in the distinction between sole custody and joint custody, the courts began to award joint custody in almost all cases where both parents were good enough parents and got along well enough with each other. At the same time, the courts began to award joint guardianship more and more commonly, and joint guardianship would be awarded with even less reluctance than joint custody... as long as both parents were involved in the child's life and were capable of maintaining the bare amount of communications necessary to discuss things from time to time.
To summarize, sole custody versus joint custody doesn't mean very much any more. In fact, custody doesn't mean much at all compared to guardianship; guardianship is what's most important because guardianship is all about the practical parenting and raising of a child. As well, sole custody doesn't give a parent any more authority than the other parent, as long as the parents have joint guardianship, and joint guardianship is now the rule rather than the exception.
For a longer and more detailed discussion, go to www.bcfamilylawresource.com.
It's difficult to tell the difference between the rights and duties custody involves from the rights and duties associated with guardianship. This confusion is aggravated because the Divorce Act only talks about custody, but the Family Relations Act talks about both custody and guardianship, and because we get a lot of misleading information about these issues from American media. The explanation, however, involves a history lesson.
The first law on divorce was the UK Divorce and Matrimonial Causes Act, passed in 1857, which became part of the laws of British Columbia as a result of the proclamation of governor Sir James Douglas on 19 November 1858. The Divorce and Matrimonial Causes Act disposed of the whole issue about children in one sentence, which gave the court the authority to make an order about custody at the time it was making an order about divorce, if it thought the custody order was appropriate.
So far, we're still talking about a concept everyone will understand. Custody, within the meaning of the first Divorce Act, describes the right of a parent to direct his or her child's life and make decisions about education, health care, moral instruction, sports activities and so forth, as well as the duty of a parent to provide his or her child with the necessities of life and an education.
Guardianship was first discussed in legislation in British Columbia's Apprentices and Minors Act, passed at some point in the late 1880s. This law discussed the duty of masters to provide the apprenticed children in their care with the necessities of life and an education, and the right of masters to benefit from the child's labour and make decisions about the child's education, health care and so on. Later on, these basic provisions about guardianship were moved into the Infants Act and, by 1930, into the Equal Guardianship of Infants Act.
Guardianship under these laws concerns the rights and duties people have in respect of the children who are in their care. These rights and duties are exactly the rights and duties that parents have, the difference is that these rights and duties are being exercised by someone who isn't a parent. In other words, guardianship is about the parental rights and duties exercised by non-parents.
So far, this still makes a lot of sense, especially when you think about the sort of people who might be guardians today: the person you might ask to care for your children in the event of your death, or the people with whom children are placed when they have been seized from their parents by the government.
Problems started cropping up in 1978 when the provincial government decided to dump all of the laws about separated families into a single piece of legislation, the Family Relations Act. In this new law, custody and guardianship were discussed side by side, and the law now said that "any person" - not just parents - could apply for custody, and that "any person" - not just non-parents - could apply for guardianship. Since parents could now apply for both custody and guardianship parents did apply for both custody and guardianship, and it became difficult to differentiate between the rights and duties included in "custody" and the rights and duties included in "guardianship."
The best that could be said was that "guardianship" now contained the nuts and bolts of parenting: the right to say where the child went to school, the right to direct the course of the child's medical treatment, the right to say where the child would live, the right to say what the child would wear to school and the right to get information from the child's doctors, teachers and coaches. "Custody" suggested a bundle of rights sort of like ownership, in the sense of having the home where the child lived most often.
Things got even worse as time went on, however, because the courts began to award joint custody without requiring parents to share their children's time equally or even near-equally. I, for example, represent parents who live all over the world but have joint custody of children who live here in British Columbia. None of these parents see their children more frequently than once or twice per month, and most see their children only once or twice per year, yet they all have joint custody of their children.
As a result of this evolution in the law, there is no connection at all between the amount of time a parent has with a child and the likelihood of that parent having joint custody or sole custody of the child, or no custodial rights at all. "Joint custody" now really only means that a parent is at least an okay sort of parent, and that he or she gets along relatively well with the other parent. That's about it.
Since so much significance was now lost in the distinction between sole custody and joint custody, the courts began to award joint custody in almost all cases where both parents were good enough parents and got along well enough with each other. At the same time, the courts began to award joint guardianship more and more commonly, and joint guardianship would be awarded with even less reluctance than joint custody... as long as both parents were involved in the child's life and were capable of maintaining the bare amount of communications necessary to discuss things from time to time.
To summarize, sole custody versus joint custody doesn't mean very much any more. In fact, custody doesn't mean much at all compared to guardianship; guardianship is what's most important because guardianship is all about the practical parenting and raising of a child. As well, sole custody doesn't give a parent any more authority than the other parent, as long as the parents have joint guardianship, and joint guardianship is now the rule rather than the exception.
For a longer and more detailed discussion, go to www.bcfamilylawresource.com.
Subscribe to:
Posts (Atom)