Damned if You Do, Damned if You Don't

The BBC and Los Angeles Times are reporting on a new study showing that both marriage and divorce increases the chance of weight gain. Not necessarily a tragedy, depending on your perspective on the issue and aesthetic preferences, but interesting nonetheless.

The 22-year-long study showed that people who marry get plumper faster than those who don't, and that the likelihood of weight gain increases again on divorce. According to the study, marriage increased the chance of weight gain in women by 33 to 48%, while divorcing women had a 22% chance of weight gain. For men, 28% were more likely to gain weight after marriage and 21% were more likely after divorce.

Provincial Court Reviewing Rules: Lawyers' Feedback Sought

The Provincial Court has issued a Notice of Consultation (PDF) announcing that a committee has been struck to review the Provincial Court (Family) Rules to ensure the rules will work with any new provincial family law legislation which may be passed, such as that proposed by last summer's white paper (PDF).

In light of the opportunity offered by this review, the notice invites lawyers to provide their comments on how the current Provincial Court (Family) Rules could be improved generally. Comments are to be provided by email to Ms Erin Shaw at erinshaw@shaw.ca and must be received by 9 October 2011.

How to Hire a Family Law Lawyer

All right, so you need a family law lawyer. That's too bad. Your question now is this: how do you go about finding and hiring one?

Personal Referrals

If you can, get a referral to one or two specific lawyers. People who can give you referrals include: family, friends and coworkers who have used a family law lawyer in the past (these people are also great for telling you who to avoid); accountants, business valuators and appraisers who have had professional dealings with family law lawyers; and, doctors, psychologists, therapists and counsellors who have been hired by family law lawyers.

These people have all had personal contact with a lawyer and can tell who they liked and who they didn't like, and the professionals will usually have worked with enough lawyers that they may be able to refer you to someone in particular based on your circumstances.

Referral Services

There are several services you can use to find a lawyer, such as directories which lawyers pay to be included, like Canada Law Books' Canadian Law List, directories where lawyers are included based on the opinion of their peers, like Best Lawyers, and open directories like the Canadian Bar Association's excellent Lawyer Referral Service, which will refer you to someone based on your location, language and legal problem.

(I have links to a bunch of local and international lawyer listing and search services in the Links & Resources section of my website.)

The Yellow Pages and the Internet

If all else fails, there's the Yellow Pages, and if the Yellow Pages fails, there's the internet.

The problem with the internet is that you don't know anything about the lawyer you're thinking of hiring except the things they say about themselves, and it's awfully easy to hire a designer to put together a slick website with Flash animations and impressive photography. Doing a Google search for best family lawyer vancouver, for example, is a terrible way to find a lawyer, if only because the rules of the Law Society are supposed to stop us from describing ourselves in ridiculously superlative language like that. (Frankly, the lawyers who really are the best have the professionalism and modesty not to describe themselves in such terms.) You'd probably get a more complete listing of lawyers with a simpler search like family law vancouver or family law nanaimo.

The problem with the Yellow Pages is that the display ads can be very expensive and you're not getting a full picture of your options... unless the picture you're looking for is of a parent walking hand in hand with a child or of a wedding ring lying on a torn family photo. And, like the internet, all you really know about the lawyers is what they say in their ads.

In fairness I may have been somewhat hard on the internet. Lawyer's websites will give you a sense of the firm's personality and any preferred areas of practice, such as children's issues, international and jurisdictional issues, appeal work or complex asset division problems. This is helpful, but it's not a substitute for a personal meeting the lawyer you're thinking of hiring.

(I have links to a bunch of lawyers' websites in the Links & Resources section of my site.)

Meet a Few Lawyers

Now that you've got at least a couple of names, start making appointments. You are making an important and often expensive decision, so meet a few people. You don't need to go with the first person you meet; you're entitled to shop around, and you should shop around.

Most lawyers charge for these initial meetings. Do not assume your meeting will be free or at a discounted rate unless the lawyer advertises that fact or his or her office tells you so. Lawyers are professionals and we bill for our time. If it's free legal advice that you're looking for, and there's nothing wrong with that, you can get it through organizations like UBC's LSLAP program, the Salvation Army's Pro Bono Program or Access Pro Bono.

It's not necessary for you to prepare anything for these meetings, but it can be helpful for you have a list of the important dates (your birthday, your partner's birthday, the children's birthdays, the date you began to live together, the date you married and the date of separation), an idea of what your assets and liabilities are (something approximate will do, you don't need to be precise), and summary of your income and your partner's income.

If litigation is underway, it's helpful to see the documents that started the case (in the Provincial Court, an Application to Obtain an Order and a Reply, and in the Supreme Court, a Notice of Family Claim, a Response to Family Claim and a Counterclaim) as well as copies of whatever orders have been made to date. If you want to hire the lawyer because your partner has made a settlement offer or prepared a separation agreement, bring copies of that too.

If litigation is going to be underway, bring a photograph of your partner for the lawyer's process server, and if you're married, bring a copy of your marriage certificate (the ugly brown thing from the Vital Statistics Agency, not the flowery document you received from your celebrant). If support will be an issue, consider bringing in copies of your three most recent income tax returns (PDF).

Choosing the Right Lawyer

I'm not an authority on this, but it seems to me that what a client ought to be looking to get out of an initial meeting is:

1. an explanation of the law applicable to your problem in language you're comfortable with;
2. an explanation of the options available to you;
3. the lawyer's opinion of the likely range of outcomes; and,
4. an idea of what it'll cost you to retain the lawyer.

On top of that, I expect a client would want to walk out of the meeting with:

5. confidence in the lawyer's knowledge of the law;
6. a sense that you will be able to work with the lawyer;
   
7. some assurance that the lawyer has the time to devote to your case; and,
8. a clear understanding of the terms of the lawyer's services.
   

Like I said before, you're entitled to shop around. You're entitled to ask the hard questions and get some honest answers, and if you have any hesitation about who you're thinking of hiring, hire someone else.

A Few Tips for Hiring a Lawyer

Ask how long the lawyer has been practicing law, and how long the lawyer has been practicing family law in particular. Ask about the lawyer's hourly rate and about the things you will be charged for.

There's nothing fundamentally wrong with hiring a junior lawyer. In general, a junior lawyer's lower hourly rate will compensate for any extra time spent researching the law or court processes, and the lawyer will usually have the ear of one or two senior lawyers who can be plied for advice as needed, especially junior lawyers at firms with multiple lawyers.

Unless your case is incredibly complex, with tough tax problems, jurisdictional problems, corporate problems or tort claims, you don't have to hire the most senior lawyer you can find or a partner of the firm. In general, our hourly rates vary with our seniority at the bar, and that usually means that more senior lawyers come with a correspondingly significant hourly rate.

Hiring a lawyer with a reputation as a shark or a bulldog isn't always a good idea, unless you like to spend lots of money in court.

If other people in a firm will be working on your file, ask to meet them as well. In particular, make a point of introducing yourself to the lawyer's main legal assistant, and be friendly.

Be prepared for the lawyer not to be able to take your case. This isn't a slight against you, it's just that most family law lawyers are terribly busy.

If the lawyer you meet can't take your case, get the lawyer's referral to two or three other lawyers. I only ever refer people to lawyers I have a personally high opinion of, and I always make referrals based on who I think would be a good fit for the client and the client's legal problem.

Stepparent Caught by Hole in Family Relations Act

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.

The Family Relations Act, British Columbia's primary law on domestic relations, is missing something very important: a triggering event for applications involving custody, guardianship, access, child support and spousal support. Nothing in the law restricts how soon an application on these issues can be made; in particular, nothing says that an application can't be brought while a couple are still together.

This isn't usually a problem, of course, since people are usually pretty annoyed when they decide to sue one another, and if they haven't split up by the time litigation commences, the commencement of litigation will usually do it. However, there can be odd consequences when other people, like grandparents or former spouses, step into the picture, since nothing says when they can and can't make applications of their own. (I made some comments about this during the consultation phase of the Family Relations Act Review, and there's a chance that the new legislation will correct this issue.) The legislative chickens came home to roost for one stepfather after an application by the child's biological father in a case recently before the Provincial Court and brought to my attention by my friend Agnes Huang of Schuman Daltrop Basran Robin.

In K.A.L. v J.P.R., the biological father brought an application for an order that the mother's new spouse - his child's stepfather - pay child support. So far this is fine, since stepparents are also liable to pay child support. The catch, though, is that the stepfather and the child's mother were together when the father brought his application!

The judge made a very thorough review of the Family Relations Act and the Child Support Guidelines for the following basic principles:

1. Each parent of a child is responsible to support a child. (FRA, s. 88(1))
2. The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
3. "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
   
4. A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))
5. Child support orders are to be made using the Child Support Guidelines tables. (FRA, s. 93(1))
6. Child support orders can be made in a different amount than the Guidelines tables, but only when there is an order or written agreement that provides a benefit to the child in some way and it would be unfair to apply the Guidelines tables. (FRA, s. 93(2))
7. Child support orders against stepparents can also be made in a different amount than the Guidelines tables as a result of "any other parent's legal duty to support the child." (CSG, s. 5)
   

And there you have it. Parents are liable to pay child support, stepparents are liable to pay child support for the benefit of a child, more than one "parent" can be required to pay child support at the same time, and nothing says when an application can and can't be made or restricts when a parent can bring the application. As a result:

"I, therefore, find that when one reads the legislated scheme for child support as a whole, and give the wording its 'grammatical and ordinary sense', a stepparent who satisfies the definition of 'parent' and lives with the parent of a child, is still obligated to make child support payments. This obligation occurs despite the fact that the parent of the child is also obligated to make child support payments."

"The [father] is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines."

Now, the judge didn't make an order against the stepfather at this point, and nor did the judge comment on who might be the recipient of the child support order. That will be the subject of a future application, and I expect that some interesting arguments will be advanced. I also wonder whether, some time before that application, the mother and the stepfather will enter into a written agreement under which the stepfather provide sufficient indirect benefits to the child that his child support obligation will be exhausted.

Law Society Approves Practice Guidelines for Family Law

The Law Society of British Columbia has endorsed a package of best practice guidelines (PDF) recommended by its family law task force with much input from a working group established by the Canadian Bar Association British Columbia. The impetus for these guidelines stems from the Family Justice Reform Working Group's 2006 report, A New Justice System for Children and Families (PDF), which recommended that:

"... the Law Society of BC recognize the changing roles and duties of family law lawyers and develop a Code of Practice for Family Lawyers to give guidance in the balancing of a lawyer’s partisan role with the potential harm it may cause to other family members, especially children."

The guidelines are true guidelines, in the sense that they set out practice standards to be aspired toward rather than a compulsory code of conduct, and what's most interesting about them is that they could easily apply to all participants in the justice system, not just lawyers.

BEST PRACTICE GUIDELINES FOR
LAWYERS PRACTICING FAMILY LAW

1. Lawyers should conduct themselves in a manner that is constructive, respectful and seeks to minimize conflict and should encourage their clients to do likewise. (Lawyers are not obliged to assist persons who are being disrespectful or abusive.)

2. Lawyers should strive to remain objective at all times, and not to over-identify with their clients or be unduly influenced by the emotions of the moment.

3. Lawyers should avoid using inflammatory language in spoken or written communications, and should encourage their clients to do likewise.

4. Lawyers should caution their clients about the limited relevance of allegations or evidence of conduct.

5. Lawyers should avoid actions that have the sole or predominant purpose of hindering, delaying or bullying an opposing party, and should encourage their clients to do likewise.

6. Lawyers cannot participate in, and should caution their clients against, any actions that are dishonest, misleading or undertaken for an improper purpose.

7. Lawyers should keep their clients advised of, and encourage their clients to consider, at all stages of the dispute:

a. the risks and costs of any proposed actions or communications;

b. both short and long term consequences;

c. the consequences for any children involved; and

d. the importance of court orders or agreements.

8. Lawyers should advise their clients that their clients are in a position of trust in relation to their children, and that

a. it is important for the client to put the children’s interests before their own; and

b. failing to do so may have a significant impact on both the children’s wellbeing and the client’s case.

9. Lawyers should advise their clients of and encourage them to consider, at all stages of the dispute, all available and suitable resources for resolving the dispute, in or out of court.

These principles all strike me as reasonable. They reflect how I practice family law and how I would like all lawyers to practice family law.

Judge Forced to Name Child

The Daily Mail reports that a judge of the Family Court of Australia was put in the unenviable position of having to pick the name of a two year old child whose birth had yet to be registered as a result of her parents' squabble. Apparently, the child's parents split up before the child was born and couldn't agree on what name she should have. The father insisted on calling her by one name - and did - while the mother insisted on calling her by another - and did.

Having been forced to decide the matter, the court acted in the manner of all commonwealth family law courts and resolved the issue through a rigorous application common sense... after the father refused a proposal to simply hyphenate the two names. The court picked the name chosen by the mother as that was the name by which most people knew the child and because the root of the father's opposition to the name lay in his "determination to control the mother and her parenting" rather than some rational objection.

Prof. Thompson Digests BC Law on Mobility

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.

On 8 July 2011, Professor Rollie Thompson, one of Canada's leading academics in family law and a co-author of the Spousal Support Advisory Guidelines (PDF), presented a summary of the recent British Columbia case law on mobility issues at a conference organized by the BC Continuing Legal Education Society.

Mobility issues are among the most difficult problems family law lawyers are called upon to address, and come up when one parent wants to take the children and move away from the other parent. Small moves really aren't the issue; what I'm talking about are moves out of town which will have a serious impact on the non-moving parent's ability to spend time with the children. The problem with moves like this is that while the moving parent usually wants to move for important reasons (to take a new job, to go to a new school, to be with family, or to live with a new partner), the move will have an inevitable impact on the non-moving parent's relationship with his or her children, and it can be extremely difficult to balance the moving parent's legitimate interest in moving with the non-moving parent's equally legitimate interest in maintaining a relationship with the children.

A 1996 case of the Supreme Court of Canada, Gordon v. Goertz, was supposed to provide guidance about when moves should be allowed and when they shouldn't, and the case set out a helpful list of factors supporting moves and factors opposing them. However, in the years which followed some cases interpreted the Gordon factors one way and some interpreted them another way, with the result that the case law has become as useless hodgepodge and Gordon can be made to say anything you want it to say. In fact the only useful thing you can get from the case law on mobility is the fact that in a narrow majority of cases the parent with primary care of the children gets to move.

This is tremendously difficult for family law lawyers, as it means that we can't give our clients meaningful predictions about whether a move will be allowed or not. All we can offer is a statistical observation which says nothing about what will happen in their particular circumstances.

This is where Professor Thompson's presentation comes into things. The last time I heard an analysis of post-Gordon cases was in 2003 or 2005, and the conclusion the speaker reached was that in something approaching 60% of Canadian mobility cases, the parent with primary care was able to move. Professor Thompson took a look at British Columbia mobility cases over the last few years and provided a number of observations about trends in this province:

• The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%, but moves are permitted about 57% of the time in BC.
• Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
• Moves were refused in 8 of 9 cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
• Moves were allowed three-quarters of the time when the children were aged 0 to 5, declining to about half the time for children aged 6 and older.
  
• Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
• The rule from Gordon that the reasons for the move should not be canvassed is almost universally ignored, and applications to move will not succeed when the application is made in bad faith or for trivial reasons.

Bearing in mind that statistics can only give you information about general trends and not about what the decision will be in a particular case, it seems that applications to move will most likely succeed when:

1. the child is of pre-school age;
2. the parent wishing to move has clearly been primarily responsible for the care of the children;
   
3. the application is made after trial; and,
4. the application is made for a good reason.

On the other hand, applications to move will most likely fail when:

1. the parents share the children's time equally or near-equally; and,
2. the application is made in bad faith or for a bad reason.

You can get a bit more information about mobility issues from my website.