That's an Expensive Headache: Wife Receives Damages for Husband's Indifference

The Guardian has reported on the curious case of the French wife who sued for divorce based on, I assume, a violation of the duties of marriage under Article 242 of the French Civil Code. What makes the case interesting is the judge's decision to fine the husband 10,000 euros to compensate the wife for the particular violation complained of, namely "lack of sex over 21 years of marriage."

Under the antique English common law, marriage came with an abundance of rights and duties. The husband had the duty to provide his wife with the necessities of life and had the right to her domestic services, the right to her property and income, and the right to have her live with him and have sex with her as he wished, called consortium. It seems that the French civil code developed in a similar manner. Title V concerns the law on marriage, including the obligations marriage gives rise to (Chapter V) and the rights and and duties of spouses (Chapter VI), and Title VI concerns the law on divorce.

In this case the husband was sued for breach of Article 215 (Title V, Chapter VI), which provides that:

"Spouses mutually oblige themselves to a community of living."

The judge held that sexual relations are a part of a "community of living," and the Guardian quotes the judge as saying that:

"A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other."

Interestingly, from the size of the award, one can deduce that the going rate for sex in marriage is about 1.3 euros a day or about $1.80 Canadian at today's rate.

New Legislation this Fall?

The CBC and Vancouver Sun report that Premier Clark has finally ended months of speculation, and a great deal of uncertainty following the HST referendum, and announced that she will not call an election this fall.

This is a bit of good news from my point of view, since the fact that we'll be having a fall legislative session rather than a fall election significantly increases the likelihood that we'll see the introduction of a bill proposing new family law legislation for the province.

The bill, if and when tabled in the provincial legislature, will be based on the white paper (PDF) released last summer, although the government has not indicated the extent to which the draft legislation will resemble the Family Law Act described in its discussion paper. For more information click on the "White Paper" label below.

Court of Appeal Issues New Practice Directives

The Court of Appeal has announced (PDF) a new set of Practice Directives and Practice Notices which will come into effect and replace the old set on 19 September 2011. Practice Directives and Practice Notes are special rules issued by the Chief Justice to govern aspects of court procedure not covered by the formal Rules of Court.

Each level of court has it's own set of special rules like these. In the Supreme Court, "Practice Directions" are issued by that court's Chief Justice. The Practice Directions of the Provincial Court are issued by the Chief Judge.

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.