Parenting Coordinators Update Roster List

The BC Parenting Coordinators Roster Society has expanded its roster. The society now boasts a total of 34 accredited parenting coordinators and improved availability across the province, with members practicing in:

• Cranbrook
• Fort St. John
• Kelowna
• Nanaimo
  
• North Vancouver
• Port Coquitlam
  
• Richmond
• Surrey
  
• Vancouver
• Victoria

In August this year, the society announced its adoption of the Guidelines for Parenting Coordination (PDF) of the Association of Family and Conciliation Courts as the practice standards of its members and published its criteria for admission to the society as a parenting coordinator.

Dial-A-Law Updates Family Law Scripts

Dial-A-Law, a public legal information project of the Canadian Bar Association BC Branch, has just published a complete overhaul of its online library of family law scripts which, among other things, brings them up to date with the new Supreme Court Family Rules. The updated scripts address a wide range of family law issues, from divorce and annulment, to custody and guardianship, to child protection and family violence. A new script provides a general introduction to family law and the family court process.

The complete collection of Dial-A-Law scripts can be accessed at www.dialalaw.org or by calling 604.687.4680 in the Lower Mainland and 1.800.565.5297 elsewhere in British Columbia.

Practical Tips for Dealing with the Application Prone Litigant

A disproportionately small number of litigants are responsible for a surprisingly large amount of litigation. These high-conflict couples, usually estimated at five to ten percent of the divorcing population, will find themselves in court on dozen or more chambers applications before trial, and back in court on a half-dozen or more chambers applications after trial.

The problem for people stuck on the receiving end of a plague of applications is that they must reply to each and every application or risk a judgment being made in default and, if they have lawyers, the cost can be crippling. Unfortunately there's no rule of court that screens out hopeless applications or puts a limit on the number of applications that can be made. Here are some options.

Costs, costs and more costs

"Costs" are a financial penalty usually awarded against the party whose position was the most unrealistic or most unreasonable in a court action. (Costs aren't a lawyer's bill, it's an amount calculated using the formula set out in Appendix B of the Supreme Court Family Rules.) Costs can also be awarded for applications made in the course of a court action.

Most of the time, the costs of applications are determined when costs of the court action are being decided. However, under Rule 16-1 the court can make an order about costs when an application has been heard and make an order that they be payable right away. Rule 16-1(13) also allows a party's conduct to be taken in account when determining costs:

If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

It's fairly rare for costs to awarded right away for family law applications. If the court believes that the applicant is acting in good faith and has reasonably brought his or her application, the court will usually say nothing about costs, leave it to the trial judge to make a decision about costs, or say that the person who is ultimately most successful when the court action is determined will have his or her costs of the application (called "costs in the cause"). Where the applicant has obviously been unreasonable or brought his or her application in bad faith, however, the court may order that:

1. the application respondent have his or her costs of the application no matter what happens with the trial (called "costs in any event of the cause");
2. the application respondent have his or her costs of the application payable right away; or,
3. the applicant pay a fixed amount as costs to the application respondent right away (called "lump-sum costs").

Lump-sum costs are the most punitive because they require the money to be paid right away, not when the trial has come to an end. At the other end of the spectrum are awards of costs in the cause, which are hardly punitive at all.

When it comes to dealing with someone who's application prone and unreasonable, you need to start keeping a list of the dates you've been in court and orders the other side was asking for.

• Assuming you're successful, you need to start asking for your costs of each application in any event of the cause.
• When it's your second or third application on more or less the same subject, you need to start complaining about how often the other side has dragged you into court and ask for your costs of each application payable right away.
• When you can prove that the other side is acting in bad faith or intentionally wasting your time, you need to ask for your costs of the application in a fixed lump-sum payable right away.

If the court has made a lump-sum costs award that the other side hasn't paid, you can raise the outstanding costs order as an initial objection to any further applications.

Ask the judge to seize him- or herself of the case

When a judge "seizes" him- or herself of a case, it means that the judge will be the only judge to hear all future applications until the case goes to trial or the judge has finally had enough. (Judges who seize themselves of applications like this usually won't hear the trial of the action.) This can be very handy because it means that the judge will learn all about the other side's issues in fairly short order, and hopefully get a bit jaded about the urgency of every new application. Otherwise, particularly in larger centres like Vancouver, Victoria and New Westminster, there's a good chance that each application will be heard by a new judge, giving the other side a change to make his or her pitch afresh.

Many judges are understandably reluctant to seize themselves of applications like this. It can be very difficult and very time consuming, and often require the judge to make him- or herself available to hear an application on short notice or while engaged in something else like a trial. When a judge will seize him- or herself of a file, however, it's an absolutely wonderful thing.

When it comes to dealing with someone who's application prone and it's clear that there's no end in sight to the number of applications you're going to have to deal with, you need to start asking the judges who are hearing the other side's applications if they will consider seizing themselves of further applications brought in the action. Although you should expect to be turned down, if you don't ask it'll never happen.

Ask for an order that permission be obtained for further applications

Finally, s. 18 of the Supreme Court Act says this:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In other word, if you can show that the other side has persistently brought unreasonable applications against you, you may be able to ask the court for an order that he or she not bring any further applications without first getting permission from a judge. Similar orders may be made by case management judges or the judge hearing a Judicial Case Conference.

This really is a heavy hammer, and the court won't make an order like this unless it is clear that someone really is behaving unreasonably and capriciously. Don't expect the court to make this sort of order lightly, and don't ask for it without getting advise from a lawyer first. The last thing you want is to come across as over-the-top as the other party!

The Revenge of Facebook, Part II

For many folks, it seems that this is not in fact the most wonderful time of year. It turns out that this is the time of year when you're most likely to be dumping or being dumped.

Journalist David McCandless has used Facebook status updates, more than 10,000 of them, to figure out when we're most likely to leave a relationship. It turns out that Mondays are bad, so is the start of the summer holidays, but the two weeks before Christmas are second only to the beginning of spring break.

Separated with Children Financial Workshop

The Justice Education Society is hosting two workshops in the new year to help parents deal with the legal, emotional, social and financial turmoil of separation. The workshops will deal with:

• becoming financially independent
• dealing with your ex and children about money
• budgeting and debt issues
• child support, spousal support and property divisions issues

The workshops are free. You just need to register ahead of time. Call the society at 604-775-0856 in the lower mainland or at 1-800-775-0856 from elsewhere.

Vancouver
Monday 21 February 2011, 6:30 to 9:30 pm

Port Coquitlam
Wednesday 23 March 2011, 6:00 to 9:00pm

The Ins and Outs of Separation... Part IV:Section 57 Declarations

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.

A "section 57 declaration" is a judicial declaration, pursuant to s. 57 of the Family Relations Act, that a married couple have "no reasonable prospect of reconciliation with each other" and is often made when a couple have started a legal action. This sort of declaration probably seems a bit pointless, and it would be completely pointless except for s. 56 of the act:

• s. 56(1) says that a married spouse is entitled to "an interest" in the family assets when declaration under s. 57 is made
  
• s. 56(2) says that the interest is "an undivided half interest in the family assets as a tenant in common"
  

While a couple are married, the legal ownership of their assets is as the asset is owned. If the car is registered in Jane's name, it's Jane's car as far as ICBC, her creditors and her trustee in bankruptcy are concerned. Although s. 56 of the Family Relations Act says that Jane and John are each presumptively entitled to half the value of Jane's car (and s. 65 allows either of them to ask for more than half), the value won't distributed until trial or settlement. The effect of a s. 57 declaration is to divide the legal ownership of the car right away; it crystallizes each spouse's presumptive one-half interest in the family assets until the property is dealt with at trial or settlement.

The legal effect of a s. 57 declaration

As you likely guess, s. 57 declarations can be really important. The declaration:

1. converts the ownership of property spouses own as joint tenants into equal ownership as tenants in common;
2. where property is owned by only one spouse, vests a half interest in each spouse as tenants in common;
3. fixes the pool of property available for distribution between the spouses; and,
4. sets a date for the valuation of the property, including the presumptive termination date of each spouse's interest in the other spouse's pension.
   

Let me explain the bit about owning property as joint tenants and tenants in common. When two or more people own something as joint tenants, they all own the whole thing. There isn't one-half or one-quarter to point to and say "this part here is mine." When a joint tenant dies, his or her interest simply evaporates and the surviving joint tenants continue to own the whole property. When two or more people own something as tenants in common, however, they each own their individual slices of the pie. They can sell or borrow against their shares of the property as they each see fit, and when a tenant in common dies, his or her interest transfers to his or her estate, to be dealt with according to the tenant's will.

Let me also explain the bit about fixing the pool of property available for division. Although property acquired after the date of a s. 57 declaration often remains the separate property of the spouse who bought it, this isn't the case for property bought with a family asset. In general, if the new property is bought with a family asset, like a new car bought using the family car as a trade-in, the new property will also qualify as a family asset and be subject to division.

When you want a s. 57 declaration and when you don't

You would particularly want a s. 57 declaration if your spouse has lots of creditors who might want to seize your spouse's property or if your spouse is likely going to go bankrupt. Once a s. 57 declaration has been made, a creditor can only take your spouse's half of the family assets and only half will vest in your spouse's trustee in bankruptcy.

On the other hand, might not want a s. 57 declaration if your spouse is likely to die and you and your spouse own valuable assets, like the family home, as joint tenants. If your spouse dies while you are joint tenants, you would continue to own the whole property after your spouse's death; if you have a s. 57 declaration, you will own the property as tenants in common and after your spouse's death, you would keep your half of the property while your spouse's half would go to his or her estate.

The law about s. 57 declarations can be complicated, and you really must speak to a lawyer to get proper advice about when you should be asking for a s. 57 declaration and when you shouldn't.

Update: 9 January 2011

Curiously, I've just bumped into two cases which illustrate the importance of s. 57 declarations, both of which concern pensions.

In Peck v. Peck, the parties separated in 2003 but a divorce action didn't get started until 2009. The wife sought a share of the husband's pension, and the husband argued that her interest in his pension should have ended in 2003 when they separated, not six years later when a s. 57 declaration was made in the divorce action. The court held that there was no reason to depart from the asset division scheme set out in the Family Relations Act and divided the pension as of the 2009 triggering event.

Similarly, in Wong v. Wong, the parties separated in 2005 but a divorce action didn't get going until 2008. At the trial in 2010, the husband asked the court to value his pension from the date of separation, not five years later at the trial. The court held that there was no reason to depart from the usual practice of dividing the pension as of the triggering event. In this case, the triggering event was the divorce trial as there hadn't been an earlier s. 57 declaration.

Update: 13 January 2011

And yet another recent case in a similar vein!

In Johnston v. Johnston, the parties married in 1985 and separated in 2005. The wife received half of the husband's pension accumulating during this period, as well as during the five year period which elapsed between separation and trial as there had been no prior triggering event. (In a somewhat unusual circumstance, the court also awarded the wife a half share of the husband's pension which accumulated during the three years that the parties lived together before marrying.)

Future posts

Separation is a surprisingly broad topic. If there's a topic you'd like me to discuss, please say so in a comment to this post.

Polygamy: The Legal Background

As you probably know, there's a hearing underway to determine whether the Criminal Code provisions criminalizing polygamy are consistent with the Charter of Rights and Freedoms. If so, we may well see prosecutions brought against some of the fine folks of Bountiful, British Columbia. There's a fascinating legal background to the hearing that the media really isn't covering, I suspect because it's probably only interesting to law nerds like myself.

A Recent History of the Common Law on Domestic Relations

Once upon a time, in Europe following the collapse of the Roman Empire to be specific, marriage was an important private economic institution and largely functioned free of control by the church or state. Marriage, and the financial and familial obligations it entailed, was the basic socioeconomic unit of feudal Europe. Upon marriage, a man and a woman were considered to be a single legal unit under the control of the husband: all of the wife's property passed into her husband's control, wives lost the power to conduct business in their own names, a wife lost the right to retain the wages paid for her labour, and husbands became able sue on behalf of their wives ...and solely liable for suits brought against them. In return, she was entitled to be provided with the necessities of life, although the quality and sufficiency of those necessities lay at her husband's discretion.

As with other social institutions, I suspect that the relative importance of marriage can be gauged by the depth and richness of the common law principles which evolved to regulate it. The common law relating to marriage is indeed quite rich and deep, and depicts marriage on the one hand as a quasi-commercial enterprise governed by the law of contracts and on the other as bedrock upon which stood one's reputation and standing in the community.

One could sue, for example, for breach of promise to marry, jactitation of marriage, criminal conversation, harbouring a spouse, and a miscellany of other matrimonial torts. Breach of promise to marry was based on the law of contracts. Jactitation of marriage concerned the false boasting of married status, thereby decreasing the marketability of the person alleged to be married to the boaster. Criminal conversation and harbouring a spouse had to do with the luring of a spouse away from a marriage thus depriving the other spouse of the benefits of the marriage contract, his "conjugal right" to his wife's services and company.

Marriages were entered into by oral agreement and did not require religious solemnization. The role of the church largely lay in determining who might marry, the circumstances in which marriages might be dissolved and addressing other largely social questions.

The law on marriage was thus governed by two masters, the ecclesiastic law on entering and exiting a marriage and the civil common law on the rights and obligations flowing from marriage. This changed dramatically in the early sixteenth century, following the Protestant Reformation in Europe and the Henrician Reformation in England, when government took upon itself the right to manage marriage and divorce. Unfortunately, one major element of Catholic dogma which survived the reformations was idea that marriages were indissoluble, as a result of which getting a divorce in England required the passage of a private act of Parliament!

The Legislation on Marriage and Divorce

The first Parliamentary law on marriage was passed in 1753, in the form of Lord Hardwicke’s Act for the Better Preventing of Clandestine Marriages, to address the unfortunate habit the youth of England and Wales had developed of marrying in Scotland where a costly marriage licence was not required. Prior to this, oral marriage contracts, marriages per verba de praesenti, created a binding marriage; now, the parties had to marry in a church (with exceptions for Jews and Quakers), with the publication of banns and a state-issued marriage licence.

The first Commonwealth law on divorce was England's 1857 Divorce and Matrimonial Causes Act, which allowed people to be divorced by court order and stripped what little jurisdiction remained to the church, and revoked many of the older matrimonial torts:

"As soon as this Act shall come into operation, all Jurisdiction now exercisable by any Ecclesiastical Court in England in respect of Divorces à Mensâ et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exercisable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed."

(If you were curious, and I know you are, a divorce à mensâ et thoro terminated the spouses' obligation to live together and the husband's obligation to provide the wife with the necessities of life without actually giving the parties a divorce; this is the origin of the much-misunderstood judicial separation. A divorce à vinculo matrimonii was required to actually terminate a marriage.)

The UK Divorce and Matrimonial Causes Act was absorbed by the Province of Canada (the pre-confederation political unit formed of Upper Canada and Lower Canada by the 1840 Act of Union) and by the Colonies of British Columbia and Vancouver as a result of the proclamation of Governor Sir James Douglas in 1858.

Marriage and Divorce at the Dawn of the 20th Century

Given the complexity of the common law on marriage and divorce, it's not terribly surprising that the legislation on these subjects would assume a similar quality, and by 1900 we had the federal and provincial Divorce and Matrimonial Causes Acts, the federal Offences in Relation to Marriage Act and the provincial Marriage Act. Marriage remained a tremendously important institution, one with profound social and economic consequences, and these laws sought to protect it.

Under the provincial Divorce Act of 1897, a husband could apply for a divorce on the basis of his wife's adultery. A wife, on the other hand, could apply for a divorce on the basis of her husband's incestuous adultery, rape, adultery coupled with cruelty, or adultery coupled with his abandonment of her for at least two years without reasonable excuse.

The provincial Marriage Act of 1867 allowed religious officials and government-appointed registrars to marry "any two persons" not under a legal disability to contract the marriage, providing that persons under the age of 21 had the consent of their father to the marriage. The act made it a crime to make a false statement to procure a marriage or to perform a marriage between persons not qualified to marry.

The federal Offences in Relation to Marriage Act of 1886 made it a crime to:

1. pretend to solemnize a marriage;
2. procure someone to solemnize a marriage who was not authorized to do so;
3. procure a feigned marriage; or,
4. marry someone while being married to someone else, in other words, to enter into a bigamous marriage.
   

About the same time, similar provisions were being introduced to the criminal law in Canada.

Bigamy, Polygamy and the Criminal Code

Sections 290 to 293 of the federal Criminal Code are titled "Offences Against Conjugal Rights." Section 290 says that every married person who goes through "a form of marriage" with another person and every person who goes through "a form of marriage" with a married person has committed bigamy, punishable under section 291 with jail for up to five years. Section 293 says that people who practice polygamy or "any kind of conjugal union with more than one person at the same time" has committed an offence.

It's a bit difficult to tell these sections apart. Bigamy and polygamy are rooted in the Greek word gamos, meaning marriage. The prefix "bi" means two, and the prefix "poly" means many; accordingly, the dictionary definition of bigamy is being married to two people, and the definition of polygamy is being married to many people. (Polyandry means having many husbands and polygyny means having many wives.) Bigamy is the traditional criminal offence, however, having been made a felony punishable by death by the first Parliament of James I in 1604, and continued in the 1861 Offences Against the Person Act with less severe consequences.

The historical intention seems to have been preserved in the Criminal Code. Section 290 clearly focuses on marriage as the problem created by bigamy; the offence lies in marrying someone knowing him or her to be married, or a married person marrying again while aware that his or her previous marriage subsists. Section 290(2) excuses the bigamous conduct if the married party genuinely believes his or her spouse to be dead.

Section 293 on the other hand, seems aimed at criminalizing polyamorous conduct; the offence of polygamy lies in the parties' agreement to live together in a marriage-like relationship, although, to be clear, a form of marriage ceremony isn't strictly required. This seems to be the core of the problem the Crown is targeting in the present hearing, and the resulting question of whether the criminalization of this sort of conduct is consistent with the Charter guarantee of freedom of religion.

In the legal climate prevailing in 1604 and 1861, the criminalization of bigamy made sense. Bigamous marriages could have disastrous social and economic consequences for the innocent party, and the criminal law fit neatly with the common law principles that had accumulated in respect of the rights and obligations marriage entailed. The criminalization of polygamy, assuming that issues about marriage aren't really the problem the law was intended to address, is about the legislation of morality and the enforcement of conformity. In the nineteenth century, I'm sure this made sense; today I'm not so sure.