CBC Reports on Fraudulent Marriage

CBC has reported today on the case of a Victoria woman who says that her husband duped her into marrying him just so he could immigrate to Canada. Although people enter into sham marriages all the time, it is always tragic when the sham is known only to one of the spouses.

When an innocent spouse has suffered real harm as a result of the deception, however, the court is usually happy to try to redress those wrongs. In the case of Raju v. Kumar, for example, a 2006 case of our Supreme Court, the court awarded damages to compensate the innocent spouse for her

"hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children"

as a result of the husband's misrepresentations which induced her to marry him.

Custody and Guardianship

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.

At one spot in my website, I say this:

"Because of certain complicated legal principles involving things like the doctrine of paramountcy, the following combinations of custody and guardianship are available:

1. joint custody and joint guardianship;
2. sole custody and joint guardianship; and,
3. sole custody and sole guardianship.

It is not possible for the parties to have joint custody while one parent is the child's sole guardian."

My off-hand reference to "complicated legal principles" has proven unsatisfactory to many, including a lot of lawyers. Let me explain.

Custody

At one point, in 1857 to be exact, the law only talked about the children of separated parents in terms of custody and access. The first law on divorce, the English Divorce and Matrimonial Causes Act, disposed of the care and control of children in one short paragraph about custody and access... unlike today's Divorce Act and Family Relations Act, which seem to spend pages on the subject.

The Divorce and Matrimonial Causes Act was just one of the English laws that were brought into the Colony of British Columbia in 1858 by the proclamation of Governor Sir James Douglas. Since British Columbia didn't join Canada until after Confederation in 1867, British Columbia managed to keep its own Divorce and Matrimonial Causes Act on the books for another hundred years, despite the division of powers in ss. 91 and 92 of the Constitution Act which assigns the power to legislate on divorce exclusively to the federal government.

Canada received the English law as well of course, and it remains on the books today, although much amended, as the Divorce Act. The Divorce Act still only talks about custody and access.

Guardianship

British Columbia first passed a law on guardianship in the late 1880s, in the Apprentices and Minors Act. That law dealt with the obligations masters had to provide the necessities of life to the apprentices in their charge. Essentially, it talked about the parent-like rights and obligations masters had in respect of the minor children who were their apprentices.

(To be clear, guardianship had been known to the common law for hundreds of years. This was the first piece of legislation on the subject.)

If the clock was stopped here, things would've been fairly clear. Custody would mean the parental rights and obligations exercised by parents and guardianship would mean the parent-like rights and obligations exercised by people who aren't parents.

Guardianship crept into the family law arena however when the provisions of the Apprentices and Minors Act were moved into the Infants Act, which mostly had to do with children's ability to enter into binding contracts, and later into the Equal Guardianship of Infants Act. (The "equal" in the title of this last act meant that women could apply for guardianship as well as men.)

The Family Relations Act

Things got a bit confused in British Columbia when the provincial government passed the Family Relations Act in 1972. The new act bundled together a bunch of provincial legislation on different family law issues in one convenient package, repealing the provincial Divorce and Matrimonial Causes Act along the way, and stuck the rules about custody right beside the rules about guardianship. The problem, from a lawyer's perspective at least, is that the new law didn't distinguish between custody and guardianship, much less explain them, and said that "any person," not just parents, could apply for custody and guardianship.

In order to accommodate the Divorce Act, however, s. 27(4) of the Family Relations Act provides that a Divorce Act order for custody is deemed to include an order for guardianship.

The Doctrine of Paramountcy

This is a constitutional principle which says that where the federal government and a provincial government have both passed a law on the same subject, the federal government's law takes priority and the provincial law is invalid to the extent that it is inconsistent with the federal law. This comes into our discussion because both the federal government and the provincial government have passed laws about custody, although only the province has a law about guardianship.

Summary and Conclusion

The meaning of "custody" under the Divorce Act contains everything that has to do with the care and control of children following separation. This must be the case because the Divorce Act only talks about custody, and "custody" must therefore be exhaustive of parents' rights and obligations in respect of their children following separation. A Divorce Act order for custody must include whatever a Family Relations Act order about guardianship means; to put it another way, guardianship and custody under the Family Relations Act can't together mean anything more than what is meant by custody under the Divorce Act.

The provincial government might decide to divide parental rights and obligations into custody and guardianship if it wishes, but however the province chooses to divide these rights and obligations, an order for custody under the federal Divorce Act says it all... and it says it all ultimately because of the doctrine of paramountcy. The Divorce Act wins. Whatever guardianship might mean, it must be included within the Divorce Act's idea of custody.

As a result of all this, you can't have an order for joint custody along with an order that gives sole guardianship to one of those parents; joint custody must include joint guardianship, and even if it didn't, assigning sole guardianship to one parent would violate the paramountcy doctrine by allowing a provincial law, the law that talks about guardianship, to step over a federal law, the law that only talks about custody. (Things might be better if the orders were made only under the Family Relations Act since the paramountcy doctrine wouldn't be invoked, but you'd still run into the problem of guardianship's subordination within the larger concept of custody.)

I hope this clears things up a bit.

Website Begins Integration of New Rules

I've begun integrating the Supreme Court Family Rules into the main text of my website, starting in the section "The Legal System," and drafting new demonstration documents to replace the old ones. Sample forms available so far include:

1. Notice of Family Claim (Form F3);
   
2. Response to Family Claim (Form F4);
   
3. Counterclaim (Form F5);
4. Notice of Application (Form F31);
5. Application Response (Form F32);
6. Financial Statement (Form F8); and,
7. Notice of Judicial Case Conference (Form F19).

The chapter "The Legal System > Interim Applications" features a lengthy discussion of the new application process and charts illustrating the timelines required by Rule 10-6.

Free Access to New Rules from Quickscribe

The nice people at Quickscribe Services Ltd have kindly offered my readers unlimited, free access to their legislation database resource for the rest of this month until the new rules come into effect on 1 July 2010.

Quickscribe maintains a comprehensive and current database of provincial legislation and regulations, and consolidates and posts amendments to their website long before they're available through the Queen's Printer. Quickscribe offers up-to-date access to provincial bills and orders in council, and tracks the amendment history of every act.

To take advantage of Quickscribe's offer, go to the login page at http://www.quickscribe.bc.ca/login.html and enter the username [offer expired] and the password [offer expired]. You won't need to cough up any personal information at all.

To locate the new rules, enter "supreme court family rules" in the Find Act/Regulation box and click GO.

How Your Lawyer Charges You

This seemed like an appropriate follow up post to my article about the cuts to legal aid.

By the Hour

Family law lawyers bill for their services by the hour. Other lawyers, like the lawyers who handle personal injury and wrongful dismissal claims, bill on a contingency basis, meaning that they work for a percentage of the settlement; family law lawyers don't do this, we bill by the time spent working on your file.

"Working on your file" encompasses a lot of different activities, as broad as the phrase suggests. In addition to the obvious things, like time spent in court or attending mediation, family law lawyers bill for reading letters and writing them, making telephone calls and taking them, researching legal problems, drafting court documents, consulting experts and giving instructions to them, and so on.

The amount of a lawyer's rate is usually, but not always, related to things like the length of time the lawyer has been practicing and the hourly rate of the other members of the lawyer's firm. When you're hiring a lawyer, make sure you get his or her hourly rate and the rates of any other members of the firm who might wind up working on your file.

Retainers

Most family law lawyers work on a retainer basis. "Retainer" has a lot of different meanings. In this context, it means an amount of money the lawyer asks you to pay up front. As time goes by, the lawyer will bill you for his or her services and pay the bill by withdrawing money from your retainer. When, after a number of bills, the retainer is empty, the lawyer will usually ask you for another retainer payment. Essentially, your retainer is security for the lawyer's future fees.

The size of the retainer the lawyer asks for will depend on a lot of things, including the perceived complexity of the file, urgency, the amount of work the lawyer thinks he or she will have to do in short order, and the number of court appearances the lawyer anticipates in the near future. When a trial is looming, the lawyer will ask for an extra retainer roughly equal to the working hours the lawyer expects the trial to consume. Unless the lawyer says so, the amount of the retainer requested is not a flat rate, quote or estimate of the total cost of resolving your file.

The retainer you give to your lawyer is your money. If your file concludes or your and your lawyer part ways before your retainer is exhausted, you will get the balance of your retainer back.

Flat Rates

Sometimes a family law lawyer will agree to work for a fixed fee. There aren't very many legal activities in family law that are suited for flat rates, but those that leap to mind are: simple divorces, separation agreements, marriage and cohabitation agreements, relative adoptions, and giving independent legal advice about an agreement.

Initial Consultations

Unless the lawyer advertises that your first meeting with him or her is free, expect to be charged for the consultation at the lawyer's usual hourly rate. Relatively few lawyers, and even fewer family law lawyers, offer free initial consultations. Never assume that your first meeting is free.

Remember that family law lawyers bill for for their time. You would expect to pay something when the mechanic puts your car up on the hoist or your plumber diagnoses a problem with your washing machine; lawyers are doing pretty much the same thing when you meet with them for legal advice, and you'll get a bill for their services just like your would from your mechanic or your plumber. If you have any questions about whether there will be a charge for the lawyer's time and advice, ask up front.

Cuts to Legal Aid

On 1 April 2010 (sorry about the delay), a number of important changes were made to the services offered by the Legal Services Society, the provincial agency which delivers legal aid in British Columbia. LSS' budget for legal services is largely funded by the provincial government.

Terminated Services

LSS no longer offers LawLINE, a service which gave free summary legal advice and legal information to persons with low incomes by telephone. The LawLINE Journal blog stopped being updated on 22 March 2010.

The LawLINK website (formerly the Electronic Law Library) has been taken off-line and now redirects to the ClickLaw website, an excellent legal information resource operated by Courthouse Libraries BC with core funding from the Law Foundation.

Updated Income Criteria

LSS provides legal representation to persons of limited means. The household income caps, above which LSS will not provide representation, has been modestly increased by $10 to $85. The current income caps are :

1. For a family of one person, you cannot earn more that $1,420 per month net.
2. For a family of two persons, $1,980 net or less.
3. For a family of three persons, $2,540 net or less.
4. For a family of four persons, $3,100 net or less.
5. For a family of five persons, $3,660 net or less.
6. For a family of six persons, $4,230 net or less.
7. For a family of seven or more persons, $4,800 net or less.

To read other posts about LSS and past funding cuts, click on the "legal aid" label below.

New Amendments for the New Rules

An Order in Council came into effect on 5 May 2010 amending the published version of the new Supreme Court Family Rules. The new rules, as amended, will be in force on 1 July 2010. Many of the amendments corrected minor errors and inconsistencies in the new rules. The significant changes are these:

1. Lists of Documents are now amended to add new documents. The old way of doing things had new documents being listed in a Supplemental List of Documents, a Second Supplemental List of Documents and so forth. With this amendment there will be only one document, an Amended List of Documents, which will be updated when new documents come to light.
   
2. The Applicant's reply materials in chambers proceedings, including the application record and application record index, must now be served and filed by 4:00pm on the day which is one full day before the day set for the hearing of the application. Previously, these materials need to be served and filed by noon on the day before the hearing. Applicants now have much less time to prepare these materials.
3. The Notice of Application form now requires the Applicant to specify the date and time of the hearing of the application.
   

The Order in Council is not yet posted to the website of the Queen's Printer. I will add that link when it becomes publicly available. I have previously discussed the new rules here, here and here, and in much more detail on my website in the New Rules 101 chapter.

Update

The Order in Council amending the published form of the new rules is now available from the Attorney General's website (PDF). The changes to the family law rules are in Schedule B, in the second half of the document.