The Revenge of Facebook, Part I

I've often thought of writing about the modern mischief Facebook seems to egg on, but it's always seemed too easy a target. The notion of being "unfriended" just isn't as funny as it used to be. And then along comes Nesbitt v. Neufeld, a November 2010 decision of the Supreme Court of British Columbia, and I am reminded that there are still lessons to be learned.

Dr. Nesbitt and Ms. Neufeld had been engaged it what the judge described as "protracted family court litigation" and resulted in Ms. Neufeld having primary care of the child, with Dr. Nesbitt having supervised access. I'm sure the litigation rankled. In any event the recently-published decision of Mr. Justice Crawford concerns not the family law litigation but an action in which Ms. Neufeld sought damages for defamation and breach of privacy from Dr. Nesbitt.

Ms. Neufeld's complaints centred around a variety of publications the court found to be authored by Dr. Nesbitt, including the "Wicked Wendy Neufeld" website (some related material can still be found on blogspot) featuring material from the family law litigation and some of her private communications, and a Facebook page titled "Wendy Neufeld Support Group" containing hurtful and sarcastic comments. To quote the judge, "that Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness."

Anyhow, the point here is that we as a society are well past the posting of anonymous pages on telephone poles. We live in the internet age where the scurrilous vituperations of an aggrieved individual are spewed across the globe for all to read in a second, and, just as the audience is massive, all that's required to discover it is a single ego-search. Hit PRINT and the broadcast is there to be attached to your next affidavit as Exhibit "A". Again, here's Mr. Justice Crawford:

"In this age of instantaneous broadcast to an innumerable number of people over the Internet, courts have acknowledged the aggravating factor this can have in determining whether the conduct at issue is defamatory and if so what the quantum of an award of damages should be."

The judge decided that Dr. Nesbitt had taken his custody fight with Ms. Neufeld "far outside the ordinary confines of the family court litigation," and awarded damages of $40,000 to Ms. Neufeld for breach of privacy and defamation, plus her special costs of the litigation on the basis that Dr. Nesbitt's conduct was "deserving of the Court's reproof."

I have to admit that I see things like this fairly frequently in my practice, sometimes as a result of wounded feelings, but sometimes and far worse as a result of a desire for revenge or retaliation. I won't moralize and tsk-tsk about the stupidity of such websites, blogs and Facebook pages; that ought to be obvious. Just remember that it's as easy to find and print these things as it is to post them, and I guarantee that they will find their way into an affidavit at the most inconvenient time possible.

Changes to Supreme Court Chambers Practice

Changes continue to be made to the rules governing chambers practice in the Supreme Court. The most recent are set out in a civil Practice Direction (PDF), PD 28, and an Administrative Notice (PDF), AN 7. Both apply to family law matters.

PD 28 says this:

• Supply an extra copy of the Notice of Application (or Petition) with the Application Record, marked to show which orders will be spoken to at the hearing.
• Application Records will be accepted for filing between 9:00am three business days before the hearing and 4:00pm on the day that is one business day before the hearing. Application Records that are filed after 4:00pm will not be placed on the hearing list.
• Applications can be adjourned by filing a Requisition (Form F17) at any time before 9:00am on the day of the hearing. If you can't file the Requisition by the deadline, you'll have to show up in court and ask the judge or master for the adjournment.
• Applications that have been adjourned can be set for hearing again by filing a Requisition two business days before the new hearing date. The Requisition must: state the new date, time and place of hearing; briefly describe the nature of the application; give a time estimate; and, state whether the application is within the jurisdiction of a master.

The other civil practice directions which apply to family law matters are set out on the Supreme Court's website with the table of family law practice directions.

AN 7 says this:

• All briefs, records and submissions that are filed in a bound format must have a cover page.
• The cover page must: give the style of cause, including the court file number and registry; describe the nature of the material (ie: "Rule 11-3 Summary Trial Application" or "Claimant's Argument"); give the contact address and telephone number for the parties or their lawyers; state the time, date and place of the appearance for which the materials are filed; state the name of the party or lawyer filing the materials; and, where the materials relate to a hearing, give a time estimate for the hearing.

In case that was confusing, AN 7 has a helpful example of an approved cover page. I have posted a template of the form in the Resources & Links > The Courts chapter of my website (scroll down to the "Downloads" segment).

For more information on the new Supreme Court Family Rules, click on the "court rules" label below.

Legal Aid News and Updates

LSS Launches Legal Advice Telephone Service (updated 24 November 2010)

On 1 November 2010, the Legal Services Society, the organization that provides legal aid in British Columbia, launched the Telephone Advice Line, rebranded as the Family LawLINE shortly thereafter, to answer questions about family law issues. The Family LawLINE is staffed by two lawyers who are available from 9:30 to 12:30 on business days. The service is intended for people who do not have a lawyer and do not qualify for representation through legal aid.

Callers must meet the legal aid eligibility criteria for legal advice, a different standard than the eligibility criteria for legal representation, and will be screened before being put through to one of the lawyers.

To contact the Family LawLINE, call:

604-408-2172 if you're calling from the Lower Mainland
1-866-577-2525 if you're calling from elsewhere

I understand that calls will not be put through after 12:00.

This is not exactly a replacement for the former LawLINE, one of the services axed with the budget cuts implemented on 1 April 2010, but it's a start.

West Coast LEAF Publishes Report

On 9 November 2010, West Coast LEAF and the Canadian Centre for Policy Alternatives published a new report on legal aid in this province titled Rights-Based Legal Aid: Rebuilding BC's Broken System (PDF). The report provides a detailed review of the funding cuts suffered by the Legal Services Society since 2002 and the consequences of those cuts, and offers some recommendations about how to fix things.

LEAF recommends that the provincial legal aid system be revamped to provide services whenever human dignity is at stake and funding a mix of specialized legal aid clinics, private lawyers paid through a tariff system and staff lawyers in community-based non-profit organizations. The report is well written and deserves a read.

LEAF's other work on family law, legal aid and legal services includes:

• Mapping the Gap: A Summary of Legal Resources for Women in British Columbia, 2010 (PDF)
  
• Legal Aid Denied: Women and the Cuts to Legal Services in BC, 2004 (PDF)
• Access to Justice Denied: Women and Legal Aid in BC, 2000 (PDF)
  

CBC Reports Continuing Government Concern with Fraudulent Marriages: Sham, wow.

CBC has published a story on the federal government's recent interest in "cracking down" on marriages of convenience, marriages entered into for immigration purposes rather than conjugal. Although Citizenship and Immigration Canada has been aware of the issue for quite some time, the ministry has recently launched an online survey on the subject and the minister, Jason Kenney, has held public meetings in Montreal and Vancouver to collect opinions.

It's difficult to pick out exactly what the government's concerns are, although the CBC's summary of a 2007 CIC report uncovered by intrepid journalist David McKie says that:

"The investigation produced shocking revelations about the number and nature of the marriages, including ties to the sex trade, narcotics trafficking, embezzlement and human smuggling."

The more pressing problem, I think, is the emotional toll taken when the immigrating spouse finally arrives in Canada, after years of arguing with the CIC to obtain permanent resident status, only for the sponsoring spouse to discover that their marriage is a sham. As an earlier CBC story put it:

"The most common type of fraud occurs after Canadians sponsor foreign spouses to live with them. After being granted permanent residence, the new arrival lands in Canada and abandons the sponsor."

Assuming that the government's concern is to prevent this sort of mischief, the next question to address must involve the means available to government to combat marriage fraud while respecting the traditions of arranged marriage common to many cultures. How do you winnow out arranged marriages entered into in good faith from those entered into for immigration purposes alone?

Apart from (1) delaying citizenship status by two or three years from the date of immigration or the commencement of the spouses' cohabitation and (2) more strictly evaluating the formal validity of marriages, I really don't know what can be done about this difficult problem from a regulatory standpoint. (Aggrieved spouses can seek some relief through the courts, with occasional success as demonstrated by the 2006 case Raju v. Kumar, but this is a time-consuming and costly process with no guarantee of success.) I would be hesitant to resolve the problem by entirely shifting the burden to the sponsoring spouse on a sort of caveat emptor basis, but with the attention this problem has begun to receive I trust that potential sponsors will be more skeptical of the marriage proposals they receive.

The Ins and Outs of Separation... Part III:The Whens

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.

Although a lot of people get hung up identifying the date of separation, getting the date precisely right is only critical in one specific situation: when spousal support is an issue for unmarried spouses. I'll discuss the date of separation in relation to married spouses first and then get to this issue involving unmarried spouses.

Divorce and the Date of Separation

Under the Divorce Act, there is only one ground for divorce: breakdown of the marriage. There are three reasons why marriage breakdown may have occurred: separation for a period of not less than one year, adultery or cruelty.

Most divorces are based on the spouses' separation. To calculate the required one year period you have to know when you separated, and the court forms used to claim a divorce, the Notice of Family Claim (Form F3) and the Counterclaim (Form F5), will ask you to state the date of separation. Under s. 8(2)(a) of the Divorce Act, the date of separation is the date when the spouses began to "live separate and apart."

Separation

I've written about how separation happens in previous posts. Here's a quick recap.

• The spouses don't have to agree to separate. All it takes is one spouse recognizing that the marriage is at an end and saying so.
• Merely living apart doesn't mean a couple have separated for the purposes of divorce. There must be a belief that the marriage is at an end.
• On the other hand, it isn't necessary for a couple to actually live apart; many separated couples continue to live under the same roof.
  

As a result, I think it's safe to say that the formal "date of separation" is the date on which a spouse forms the conclusion that the marriage is at an end and takes steps to terminate the marriage-like quality of the relationship. To avoid arguments about the date of separation, it's best if there is some sort of objective marker of separation, such as (a) a communication of the spouse's conclusion that the marriage is over, or (b) a spouse moving out.

Disputing the Date of Separation

Spouses rarely wind up arguing about the exact date of separation because in the vast majority of cases it's not very important. You don't need to be separated for one year before beginning the law suit claiming the divorce; most people have been separated for far more than a year when the court is finally asked to make a divorce order.

If the exact date of separation is argued, it's probably as a defence to the underlying divorce claim, to say, for example, that the spouses have not be living separate and apart for one year when the court is asked for the divorce order or that the spouses were not living separate and apart at the commencement of the law suit claiming the divorce. Arguments like these really only wind up postponing the inevitable and won't be effective to permanently block the divorce order.

If the exact date of separation is not argued, the date set out in the Notice of Family Claim or Counterclaim will do. The court rarely undertakes its own enquiry into the factual accuracy of the claimed date of separation.

Unmarried Spouses and Spousal Support

The Family Relations Act, at s. 1, says that a "spouse" includes someone who is married as well as someone who:

"... lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act is made within one year after they ceased to leave together ..."

This is important because it defines how unmarried couples can qualify as common-law spouses (living together in marriage-like relationship for at least two years) and it says when a person loses the right to apply for an order based on the spousal relationship (one year after the date of separation). To be clear, this definition really only affects a common-law spouse's ability to apply for spousal support and a small number of personal protection orders, because orders about children rest on the definition of "parent", which has a different test, and because common-law couples cannot apply for orders about the division of assets under the act.

When a common-law spouse has a claim for spousal support, the date of separation is very important, more important than it is for married spouses: if the claim for spousal support is not made within one year from separation it cannot be made at all.

The date of separation for unmarried spouses is determined as it is for married spouses. When did one or both spouses reach the conclusion that the relationship was over? If just one spouse made this decision, when was the decision communicated? When did the marriage-like quality of the relationship end?

The Return of LawLINE?

LawLINE was one of the programs offered by the Legal Services Society, the organization that provides legal aid in British Columbia, that were terminated in 1 April 2010 as a result of cuts to the society's budget. LawLINE gave people telephone access to a lawyer for legal information and advice without having to pay for an initial consultation. From my point of view, programs like this are invaluable for people who might only have a small question that can be answered quickly and for people living in the more remote parts of the province; it was a real loss when the program was cut.

To get to the good news, I have heard from a reliable source that LSS may be reviving LawLINE in the next couple of months, or at least some other program that will look a lot like LawLINE. This is very welcome news indeed.

The Ins and Outs of Separation... Part II:Sex and New Relationships

Questions about sex and new relationships following separation are very, very common... Is it adultery to have sex with someone else after separation? If you're living with someone new, can you be in a common-law relationship before you've divorced? Is it okay to have sex with the spouse you've separated from? Thankfully the answers are pretty simple.

Sex with spouses

Yes, it's okay to have sex with your spouse after you've separated. It happens all the time. There are three things to be aware of.

First, from a legal point of view, s. 8(3)(b)(ii) of the Divorce Act says that married spouses can live together "with reconciliation as its primary purpose" for up to a total of ninety days following separation without stopping the clock on the one-year period of separation that has to pass to get a divorce. (Once more than ninety days have passed, the one-year period starts to run from the last separation.) Honestly, though, I don't see this as much of a problem. Spending the night with your spouse isn't going to count toward the ninety days unless you spent the night for the "primary purpose" of reconciliation rather than sex, which I rather doubt.

Second, if the legal ground for your divorce is based on your spouse's adultery or your spouse's cruelty toward you, you need to know that you may have been considered to have forgiven or "condoned" your spouse's misconduct if you have sex with your spouse after separation. Under s. 11(2) of the Divorce Act, an act of adultery or cruelty that has been condoned cannot be used as a ground for divorce.

(There aren't any legal problems with unmarried spouses or partners having sex after separation since a divorce isn't necessary to end unmarried relationships.)

Third, from an emotional point of view, you might want to think about what having sex with your spouse will do to the progress you've been making in getting over that relationship and building a life for yourself that doesn't include him or her. Lots of people are able to handle the messiness of sex with a separated spouse; other people find it to be emotionally difficult.

Sex with other people

As long as you're married, having sex with someone who isn't your spouse counts as adultery. If you're separated at the time however, no one except your in-laws or the Pope is going to care.

I suppose it's true that your spouse could claim adultery as the ground for your divorce, but if you've already separated from your spouse, your marriage would seem to have already come to an end for an entirely different reason than your adultery. Apart from this one issue about the legal ground for your divorce, having sex with someone else isn't going to have an impact on how your divorce is handled. It isn't relevant to whether spousal support is payable or not, how much child support will be paid, how property will be divided or what the parenting arrangements are going to look like.

(There's no such thing as adultery for unmarried couples, since you have to be married in order for sex with someone other than your partner to count as adultery.)

New relationships

As I often tell my clients, there's nothing a separated married person can't do that a single person can, except to get married. Apart from that, a separated married person can see other people, date other people, have children with other people and live with other people.

What's interesting about all of this is that there's nothing stopping a person who's married to someone qualifying as someone else's common-law spouse. Under the Family Relations Act, "spouse" includes, in addition to people who have been married, people who have lived together in a "marriage-like relationship" for at least two years. In other words, if it's taking awhile to get your divorce and you've moved in with someone else, you could have two legal spouses: the person you're still married to and the person you've been living with. Surprise!

I talk about the legal consequences of having two spouses in the Marriage & Divorce > Separation chapter of my website.

Future posts

Separation is a broad subject. If there's something you'd like me to discuss, please say so in a comment to this post. Click on the "separation" label below to read other posts about separation.