A Short Survey of Cases on the New Family Law Act

The following is drawn from a presentation I recently provided to the Legal Services Society / Law Foundation of British Columbia's 2014 Provincial Training Conference for Legal Advocates. It contains my extremely brief summaries of what the courts have had to say about the various provisions of the Family Law Act, between 18 March 2013, the date when the act came into force, and 31 October 2014.

As with all of my work, you are free to copy, reproduce and redistribute this information as you wish, providing that you don't do so to make money and providing that you credit my blog as the source. However, be cautioned that this summary is not comprehensive (I have ignored much of Part 10 and all of Parts 6, 11 and 12, for example, and I have not included cases which are, in my respectful view, perhaps wrongly decided) and that my description of a case may not be accurate. You must read the cases themselves to make sure I've got it right. 

Most of the links to the cases referred to were automatically generated by CanLII's extremely cool hyperlinking tool. (Thank you CanLII!) However, I have made errors here and there in the spelling of the citation of cases which has caused CanLII to link to cases other than the ones I intended. If you spot an error, please post a comment to this post and I'll fix it as soon as I can.

Part I: Interpretation

“Family violence”, s. 1

Court should take a broad view of what constitutes family violence  

M.W.B. v A.R.B., 2013 BCSC 885

Demeaning remarks, blaming parent to a child qualify as family violence  

D.N.L. v C.N.S., 2014 BCSC 1417

Derogatory outbursts, demeaning comments qualify  

D.N.L. v C.N.S., 2013 BCSC 809

Threats, minimal physical contact qualify 

K.L.L. v D.J., 2014 BCPC 85

Litigation abuse, failure to cooperate qualify 

M.W.B. v A.R.B., 2013 BCSC 885

Behaviour causing financial hardship and stress, threats to cause financial hardship qualify  

Hokhold v Gerbrandt, 2014 BCSC 1875

Deliberate failure to pay child support intended to inflict emotional harm or control behaviour qualifies  

J.C.P. v J.B., 2013 BCPC 297; S.N. v E.C., 2014 BCPC 82

“Spouse”, s. 3

Someone separating within two years of Family Law Act coming into force is a spouse  

Meservy v Field, 2013 BCSC 2378

Parties living together for less than two years but have a child are spouses, even if separated before Family Law Act came into force  

C.A.M. v M.D.Q., 2014 BCPC 110

Merely living together doesn’t mean a relationship is marriage-like  

Matteucci v Greenberg, 2014 BCSC 1434; Trudeau v Panter, 2013 BCSC 706

Part II: Resolving family law disputes

Duty to disclose, s. 5

Intended to encourage earlier disclosure, imposes a duty to disclose at the outset  

J.D.G. v J.J.V., 2013 BCSC 1274

Imposes mandatory obligation to provide full and true information  

J.C.P. v J.B., 2013 BCPC 297

Parenting coordination, ss. 14 -19

Legislation intended to give parenting coordinators adjudicative powers necessary for role; parenting coordination intended to be cost-effective, should be cheaper than litigation; legislation intended to create alternative process to litigation; court should be reluctant to terminate parenting coordination agreement for minor or technical problem  

M.J.H. v C.D.S., 2013 BCSC 2232

May be appointed when future disagreements are foreseeable  

Rashtian v Barghoush, 2013 BCSC 994

…if there is “considerable conflict” 

J.C.P. v J.B., 2013 BCPC 297 

… if there is “inability to achieve rational compromise ” 

R.M. v N.M., 2014 BCSC 1755

If no ambiguity in parenting order, shouldn’t be appointed 

 McBeth v Lakey, 2014 BCSC 735

No substantive case law

• Duties of family dispute resolution professionals, s. 8
• Duties of parties, s. 9
• Confidentiality of information, s. 11

Part III: Determining parentage

No substantive case law

• Void and voidable marriages, s. 21
• Donor not automatically parent, s. 24
• Parentage without assisted reproduction, s. 26
• Parentage with assisted reproduction, s. 27
• Parentage with surrogacy, s. 29
• Declarations of parentage, s. 31

Part IV: Parenting

Best interests, s. 37

Best interests are only consideration 

Hadjioannou v Hadjioannou, 2013 BCSC 1682

Each of the s-s. (2) factors must be separately considered but “in the end the evidence has to be considered as a whole”  

M.W.B. v A.R.B., 2013 BCSC 885

Assessment of impact of family violence is mandatory  

J.C.P. v J.B., 2013 BCPC 297

Impact of family violence, s. 38

Analysis required involves consideration of each factor 

N.C.R. v K.D.C., 2014 BCPC 9

Expert evidence may assist court’s analysis 

Keith v MacMillan, 2014 BCSC 1352 

Guardianship, s. 39

Cannot apply for an order of “sole guardianship,” must apply for removal of guardian who is objected to

S.T.H. v R.M.G., 2013 BCPC 114

Court needn’t make an order declaring someone who is a guardian by definition to be a guardian, court simply acknowledges the fact  

K.L.L. v D.J., 2014 BCPC 85

However some judges “appoint”  

M.J.A. v R.D.A., 2014 BCSC 1222

…others make declarations confirming status as guardians  

T.T. v J.M.H., 2014 BCSC 451

…others just simply say that parents “are” guardians  

K.B. v A.S.R., 2014 BCSC 1642

Parenting arrangements, s. 40

There are no presumptions in favour of a parent that predetermine child’s best interests  

M.W.B. v A.R.B., 2013 BCSC 885

There are no presumptions of equal time  

Henderson v Bal, 2014 BCSC 1347

A person who is not guardian cannot have parental responsibilities, only contact  

C.L.T. v S.L.R., 2014 BCPC 131; M.A.G. v P.L.M., 2014 BCSC 126

Parenting arrangements, s. 40

Court may order “exclusive rights over all of the parenting arrangements,” without necessity of consultation

J.D.S. v D.Y.C.P., 2014 BCSC 1577

…may also simply order joint exercise of parental responsibilities per s. 40(2)

Shier v Shier, 2014 BCSC 998

…may conclude necessity of consultation is unreasonable and may assign responsibilities as best suits child’s best interests  

S.T.H. v. R.M.G., 2013 BCPC 114

…may give views of primary caregiver more weight as they are more familiar which child’s needs, but giving such weight must not be presumed  

K.L.G. v D.J.T., 2013 BCSC 1684

Parental responsibilities, s. 41

Court may order that some be shared and some not  

C.A.J. v N.J., 2014 BCSC 279; M.S. v G.S., 2013 BCSC 1744

…may assign primary care to one parent, with sharing of rest  

McCaw v Hawkey, 2014 BCSC 765

…may order “equal parental responsibilities”  

Wafa v Faizi, 2014 BCSC 1760

…may impose terms on sharing of parental responsibilities similar to Joyce and Horn models under Family Relations Act

J.L. v L.D., 2013 BCPC 201; Van Koten v More, 2013 BCSC 1076

…may require sharing but give one parent right to decide in the event of impasse with no other terms  

L.A.R. v E.J.R., 2014 BCSC 966

…may assign all to one guardian  

K.M.M. v D.R.M., 2014 BCSC 569

Parenting time, s. 42

Guardian has parental responsibility of day-to-day decision-making and care and control of child during parenting time  

A.B.Z. v A.L.F.A., 2014 BCSC 1453

Court may order that parental responsibility of day-to-day decision-making and care and control of child be vested solely in a guardian during his or her parenting time  

K.B. v A.S.R., 2014 BCSC 1643

Agreements on parenting, s. 44

An agreement for contact is not an agreement for “parenting arrangements” and cannot be enforced under this section

T.C. v S.C., 2013 BCPC 217 

Orders on parenting, s. 45

An application for parenting time by person applying for guardianship is contingent on outcome of guardianship application  

S.J.F. v R.M.N., 2013 BCSC 1812

If application for parenting time is brought in context of a plan to change residence, s. 46 applies  

S.J.F. v R.M.N., 2013 BCSC 1812

Only consideration is best interests per s. 37  

S.J.F. v R.M.N., 2013 BCSC 1812

Supervised parenting time, s. 45

Supervision orders must serve the interests of the child, nothing else; long-term orders are discouraged, but can be justified if in the interests of the child; case law sets out 15 factors that should be considered in making supervision orders

L.A.M.G. v C.S., 2014 BCPC 172

Relocation if no order, s. 46

Section applies to initial application for parenting arrangements when guardian indicates an intention to change child’s residence  

S.J.F. v R.M.N., 2013 BCSC 1812 

If existing order is for contact only, there is no order on “parenting arrangements” and s. 46 applies  

S.J.F. v R.M.N., 2013 BCSC 1812 

Section doesn’t apply if guardian has already moved  

De Jong v Gardner, 2013 BCSC 1303

Test: determine the parenting arrangements in the best interest of the children, based on each of s. 37(2) factors, plus the reasons for the change of residence; cannot consider whether guardian would move without child  

S.J.F. v R.M.N., 2013 BCSC 1812 

Relocation test under s. 69 “involves a more nuanced approach”  

A.J.D. v E.A.E., 2013 BCSC 2160

Changing orders, s. 47

Test: change of circumstance threshold from Gordon v Goertz, [1996] 2 SCR 27 applies, “change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”  

Gilmour v Herrick, 2013 BCSC 1591

Applicant bears burden of proving change in needs or circumstances of child  

M.R. v L.J., 2014 BCPC 39

Intervention of child welfare authorities, child’s election not to see a parent qualify  

J.L. v L.D., 2013 BCPC 201

…taking child out of school, mental health issues, family violence qualify  

T.D. v E.D., 2013 BCPC 135

…moves within the province where the parents already lived far apart may not qualify  

McNaught v Friedman, 2013 BCSC 1836

…breach of court order, parent’s discussion of adult issues with children, parent obtaining live-in caretaker may not qualify  

D.J.S. v J.M.D., 2013 BCSC 2302

…change in applicant’s financial circumstances may not qualify  

M.R. v L.J., 2014 BCPC 39

Informal parenting arrangements, s. 48

Presumption is against unilateral change without consultation, not against relocation

L.J.P. v D.L.B., 2014 BCPC 104

Appointment of guardians, s. 51

Requirements of s. 51 and rules of court on guardianship applications are mandatory  

L.A.M.G. v C.S., 2014 BCPC 172

Interim order may be made to provide person with standing of guardian for purposes of an application if in the best interests of child and in the interest of the administration of justice 

T.C. v S.C., 2013 BCPC 217

Terminating guardianship, s. 51

Should only occur in “most extreme situations”  

D. v D., 2013 BCPC 135

Test: first see whether with redistribution of parental responsibilities it remains in child’s interest that person remain a guardian; person ceasing to be guardian loses all parenting responsibilities and rights  

D. v D., 2013 BCPC 135 

 “By allocating or reallocating parenting responsibilities to a more capable parent as opposed to terminating guardianship, a child may safely retain the benefit of having a parent remain a significant part of his or her life”  

M.A.G. v P.L.M., 2014 BCSC 126

J.W.K. v E.K., 2014 BCSC 1635 is a good summary case

Orders for contact, s. 59

Person who is not guardian may only have contact  

C.L.T. v S.L.R., 2014 BCPC 131; S.J.F. v R.M.N., 2013 BCSC 1812 

Supervised parenting time, s. 59

Supervision orders must serve the interests of the child, nothing else; long-term orders are discouraged, but can be justified if in the interests of the child; case law sets out 15 factors that should be considered in making supervision orders

L.A.M.G. v C.S., 2014 BCPC 172

Denial of parenting time or contact, s. 61

Applicant must prove denial was wrongful  

Shaw v Shaw, 2014 BCSC 984

Court should not consider evidence of incidents beyond 12 month limit  

Shaw v Shaw, 2014 BCSC 984

Court cannot impose prospective sanctions in anticipation of future breach  

S.G. v M.G., 2014 BCPC 6; D.J.S. v J.M.D., 2014 BCSC 1143

Compensable expenses may include loss of income, increased living costs, travel costs, but applicant must prove the expenses claimed to have been incurred  

L.S. v G.S., 2014 BCSC 187

 “Missed parenting time should be assessed on a qualitative rather than a quantitative basis. Access days should not be totted up and traded back and forth like poker chips.”  

K.L.K. v E.J.G.K., 2013 BCSC 2030

Applicant must prove children missed a special event or activity, should provide plan or schedule for make up time  

K.L.K. v E.J.G.K., 2013 BCSC 2030

Permissible withholding of parenting time or contact, s. 62

Belief justifying withholding of parenting time or contact must be held at time of withholding, not established after the fact 

D.N.L. v C.N.S., 2014 BCSC 1417

Attempted use of force on the child to exact the scheduled parenting time or contact may justify withholding on basis of family violence 

D.N.L. v C.N.S., 2014 BCSC 1417

Application of Division 6, s. 65

Division is not intended to apply to interim applications  

S.J.F. v. R.M.N., 2013 BCSC 1812; A.J.D. v E.A.E., 2013 BCSC 2160

Division applies to separation agreements  

S.B. v N.L., 2013 BCPC 233

Focus is on children’s relationships and impact of relocation on those relationships; “to qualify as a relocation, the impact must be significant,” move within a municipality not significant  

Berry v Berry, 2013 BCSC 1095

Notice of relocation, s. 66

Degree of proof of delivery varies depending on severity of repercussions of missing 30-day time limit  

S.B. v N.L., 2013 BCPC 233

Notice can be provided by letter from lawyer

S.B. v N.L., 2013 BCPC 233; Klyne v Gardner, 2014 BCSC 1332

… by letter from guardian  

S.N. v E.C., 2014 BCPC 82

… by notice of motion  

Hokhold v Gerbrandt, 2014 BCSC 1875

Only a guardian has standing to object to relocation  

S.J.F. v R.M.M., 2013 BCSC 1812

Court may prohibit relocation despite expiry of 30-day period, court should consider length of delay in filing objection, reasonableness of explanation for late filing, prejudice to moving guardian if hearing allowed; prejudice relates to date of move and planning already undertaken  

S.B. v N.L., 2013 BCPC 233

Relocation, s. 69

Test: reasonableness of arrangements proposed depends on location; good faith factors are subjective, objective or both, and must be considered in light of the facts; best interests require analysis of each s. 37(2) factor  

L.J.R. v S.W.R., 2013 BCSC 1344

Test: good faith requires proof that not moving for improper reasons and that move will enhance child’s or guardian’s quality of life; reasonable arrangements means preserving child’s relationship with guardian, not augmenting or 
enhancing; best interests require analysis of each s. 37(2) factor  

T.C. v S.C., 2013 BCPC 217

If relocation is permitted, s. 70

Purpose of s. 70 is to preserve existing arrangements “to the extent that is reasonably possible” if relocation permitted, not to “fundamentally change the parenting arrangements”  

J.P. v J.B., 2013 BCPC 168

No substantive case law

• Referral of questions to court, s. 49
• Agreements on guardianship, s. 50
• Appointment of testamentary guardian, s. 53
• Appointment of standby guardian, s. 55
• Agreements for contact, s. 58
• Changing orders for contact, s. 60
• Failure to exercise time or contact, s. 63
• Non-removal orders, s. 64
• Order prohibiting relocation is not a change in circumstances, s. 71

Part V: Property and debt

Equal entitlement to property and responsibility for debt, s. 81

Pensions are family property subject to equal division under s. 81, and spouses’ half interest arises on separation

Stonehouse v Stonehouse, 2014 BCSC 1057; Joffres v Joffres, 2014 BCSC 1778

Entitlement under s. 81 rests on the definition of spouse, and entitlement commences on separation

Meservy v Field, 2013 BCSC 2378

The presumption of equal entitlement to family property and equal responsibility for family debt is the “starting point”

Remmem v Remmem, 2014 BCSC 1552

Family property, s. 84

Section 84(2)(g) modifies s. 85’s exclusion of property acquired before the beginning of the spousal relationship, “by including within family property the amount by which the value of excluded property has increased”

Williams v Killey, 2014 BCSC 1846

Family property is all property owned, or in which there is a beneficial interest held, by either spouse at the date of separation, and includes property acquired after separation with family property

Dhillon v Gaba, 2014 BCSC 1474; H.C. v H.P.C., 2014 BCSC 1775

Where parent of spouse provides funds for the spouse’s home, the funds are presumed to be a gift to both spouses and is therefore family property

Cabezas v Maxim, 2014 BCSC 767

Excluded property, s. 85

Onus of proof that property is excluded property lies on party claiming exclusion

Bressette v Henderson, 2013 BCSC 1661

Property acquired by a spouse before the relationship began, and property derived from that property, are excluded from family property

Cabezas v Maxim, 2014 BCSC 767

A spouse “has no right” to property that is not family property

Remmem v Remmem, 2014 BCSC 1552

Inheritances received by a spouse are excluded property

Thomson v Young, 2014 BCSC 799

Family debt, s. 86

Debts known of at the time of trial of a Family Relations Act property claim are res judicata and cannot be relitigated as a family debt by an action under the Family Law Act

G.M.W. v D.P.W., 2014 BCSC 482

A contingent reduction in debt does not alter the value of the debt to be shared between spouses

K.M.J. v J.H.D.N., 2014 BCSC 1895

Valuation date, s. 87

Date for valuation of family property is the date of the trial or agreement dividing it, and value must be based on fair market value; evidence of fair market value must be provided

H.C. v H.P.C., 2014 BCSC 1775

Interim distribution, s. 89

Applicant must detail anticipated expenses and explain why they cannot be met from earnings or funds from other sources  

L.L.J. v E.J., 2013 BCSC 1233

Cash advanced to fund litigation where parties have disparity in income and “proceed toward and into trial in very unequal circumstances”  

M.A.L. v N.A.L., 2014 BCSC 203

Exclusive occupancy, s. 90

This provision “does not appear to contemplate departure from the historical framework of analysis” under Family Relations Act

Longo v Longo, 2013 BCSC 1578

Applicant must show that shared use of home is a “practical impossibility” and that he or she should be preferred occupant on balance of convenience, applying Family Relations Act case law  

Ferguson v Ferguson, 2014 BCSC 216; Bateman v Bateman, 2013 BCSC 2026

Conclusion that family violence has occurred will influence decision given Family Law Act’s emphasis on the issue 

J.R.E. v. 07----8 B.C. Ltd, 2013 BCSC 2038

Agreements on property, s. 92

This provision recognizes the validity of oral agreements as well as writing agreements

P.N.K. v C.L., 2013 BCSC 1856; Thomson v Young, 2014 BCSC 799

Setting aside agreements, s. 93

Test: First enquiry concerns formation of agreement, second concerns effect of agreement, however even if unfairly reached court may decline to set agreement aside

Asselin v Roy, 2013 BCSC 1681

This provision is inapplicable to actions commenced under the Family Relations Act

H.J.S. v K.C.S., 2013 BCSC 998

Family Law Act attempts to codify the law enunciated in Miglin and Rick v Brandsema

H.J.S. v K.C.S., 2013 BCSC 998

Court may only set aside an agreement on property under s-s. (3) if there is evidence demonstrating one or more of stated circumstances

Forest v Forest, 2014 BCSC 1862

Court will only set aside an agreement on property under s-ss. (4) and (5) “if the division agreed to would be ‘substantially different’ from the division that the court would order and ‘significantly unfair’ to one of the spouses”

Thomson v Young, 2014 BCSC 799

Family Law Act recognizes rights of parties to enter into agreements “but provides for the setting aside and variation of agreements if they are unfairly constitutes or the result is significantly unfair”

Asselin v Roy, 2013 BCSC 1681

Orders for property division, s. 94

Purpose of section is “to give ascendency to such agreements unless they are set aside or vitiated on application under s. 93,” point is not to prevent court from making ancillary orders so as to enforce such agreements

Heid v Breland, 2013 BCSC 2412

Unequal division, s. 95

Test: court must first “go through the notional exercise” of equal division, then consider if equal division would be significantly unfair; “significantly unfair” is “compelling or meaningful having regard to the factors set out in s. 95(2)

Remmem v Remmem, 2014 BCSC 1552

“Significant unfairness” is a “caution against a departure from the default of equal division … only when an equal division brings consquences sufficiently weighty to render and equal division unjust or unreasonable should a judge depart from the default equal division.”

L.G. v R.G., 2013 BCSC 983

No substantive case law

• Rights and remedies of third parties, s. 82
• Protection of property, s. 91
• Division of excluded property, s. 96
• Donor of gift is party to agreement, s. 102

Part VII: Child support and spousal support

“Child”, s. 146

Family Law Act does not change law on whether adult child remains a child for support purposes  

D.M.P. v G.E.A., 2013 BCPC 117

Duty to provide child support, s. 147

All parents and qualifying guardians have a duty to pay support  

D.Z.M. v S.M., 2014 BCPC 198

Qualifying stepparents have a duty to pay support  

C.L.P. v N.D., 2014 BCPC 154

Purpose is to ensure children have consistent and reasonable standards of living; primary responsibility lies on parents and if parents can adequately provide stepparents are exempt, if parents cannot provide stepparent may be ordered to contribute  

C.B. v M.B., 2014 BCPC 75

Old case law from Family Relations Act and Child Support Guidelines s. 5 on stepparents applies  

Henderson v Bal, 2014 BCSC 1347

Amount of stepparent’s obligation is determined under Child Support Guidelines s. 5 along with new Family Law Act factors of length of relationship and standard of living  

C.L.P. v N.D., 2014 BCPC 154

…may result in stepparent paying no child support  

C.L.P. v N.D., 2014 BCPC 154

…may result in stepparent paying full amount  

S.S. v P.W., 2014 BCPC 177

…may result support obligation terminating before stepchild reaches age of majority  

Bouzane v Martin, 2014 BCSC 1690

See also U.V.H. v M.W.H., 2008 BCCA 177

Voluntary withdrawal, s. 147

Removal of children by state is not voluntary withdrawal intended by Family Law Act  

D.Z.M. v S.M., 2014 BCPC 198

Child’s refusal to visit does not amount to voluntary withdrawal  

Henderson v Bal, 2014 BCSC 1347

Child who is incarcerated for more than a year has voluntarily withdrawn  

M.A. v F.A., 2013 BCSC 1077

Agreements on child support, s. 148

Whether court would make a different order to be determined by applying the Child Support Guidelines  

Young v Young, 2013 BCSC 1574

Orders on child support, s. 149

Support from stepparents may only be ordered after stepparent and parent have separated  

D.J. & K.J. v C.K. & T.K., 2013 BCPC 197; C.L.L. v D.K.L., 2014 BCSC 1020

Amount of child support, s. 150

Quantum of child support continues to be determined by Child Support Guidelines  

Thibault v White, 2014 BCSC 497

Child Support Guidelines are unchanged by the Family Law Act, and old law on child support under Family Relations Act continues to apply  

S.M.L. v R.X.R., 2013 BCPC 123

Changing support orders, s. 152

Family Law Act makes it clear that child support orders can be changed retroactively  

S.M.L. v R.X.R., 2013 BCPC 123

Applicant must show that significant, long-lasting change occurred, that the change was real and not one of choice, and that every effort was made to earn money  

K.B. v J.O., 2014 BCPC 212

Test to retroactively reduce child support under s. 152 is different than test to cancel arrears under s. 174 because of “more stringent” test of gross unfairness  

A.B.Z. v. A.L.F.A., 2014 BCSC 1453

However, there are strong policy reasons to apply same standard to retroactive variation  

P.L. v J.D.L., 2013 BCSC 1492

Spousal support, s. 160

Court must first consider s. 161 objectives and consider the conditions, means and needs and other circumstances of the spouses under s. 162, analysis is a “balancing act”  

Quaife v Quaife, 2014 BCSC 1418

A duty to pay support only exists where entitlement exists, taking into account the s. 161 objectives  

S.S. v P.W., 2014 BCPC 177

Objective of support, s. 161

Language of Family Law Act is “substantially identical” to that employed in Divorce Act and “differs significantly” from that of Family Relations Act, courts should apply Divorce Act case law including Moge, Bracklow, Chutter and Yemchuk  

Rathlou v Haylock, 2014 BCPC 59

Outcome will be the same whether under Divorce Act or Family Law Act  

Sinclair v Sinclair, 2013 BCSC 2400

Determining support, s. 162

The provisions of Divorce Act and Family Law Act s. 162 “are so close” that “any difference is immaterial”   

Hutchen v Hutchen, 2014 BCSC 729

Spousal misconduct, s. 166

Payor’s failure to take meaningful steps toward employment and repeated applications to terminate support are arbitrary actions adversely affecting ability to pay support  

Peterson v Lebovitz, 2013 BCSC 651

Cause of failure of relationship not a factor to be considered  

Bateman v Bateman, 2013 BCSC 2026

Changing support orders, s. 167

Court must be satisfied that there has been a change in circumstances of a spouse, that new evidence has become available or that evidence of a lack of disclosure has been discovered, before changing or cancelling an order and must take that factor into consideration  

M.K.M. v P.S.M., 2013 BCSC 579

Changing support orders, s. 167

Test under Family Law Act is that under Divorce Act, with addition of new Family Law Act factors of new evidence and lack of disclosure  

A.B.Z. v A.L.F.A., 2014 BCSC 1453

Binding estate with support obligation, s. 170

Family Law Act makes it clear that ongoing support can be made binding on estate, overruling previous cases expressing doubt, however Family Law Act requires court to peer into future and guess whether other obligations of payor’s estate allow for ongoing payments; evidence must be provided of children’s life expectancies, payor’s estate and likely claims against estate  

Joffres v Joffres, 2014 BCSC 1778

Orders charging payor’s estate are not indefinite or incapable of discharge as payor’s personal representative can apply to change or cancel the order  

P.K.C. v J.R.R., 2014 BCSC 932

Life insurance, s. 170

Order requiring payor to maintain life insurance and designate spouse or child as beneficiary only available if payor has existing policy, court cannot require payor to obtain new policy  

R.M. v N.M., 2014 BCSC 1755

Priority of child support, s. 173

This provision used to support order for review of spousal support in the event the child support payments required are reduced or terminated in the future

S.S. v P.W., 2014 BCPC 177

Arrears of support, s. 174

Provisions of Family Law Act “virtually the same” as Family Relations Act  

Jensen v Jensen, 2013 BCSC 1373

Case law under Family Relations Act applies under Family Law Act, including Earle, Van Gool and Semancik

B.F. v J.F., 2014 BCSC 1892; Beavis v Beavis, 2014 BCSC 422

No substantive case law

• Child support if parentage at issue, s. 151
• Agreements on spousal support, s. 163
• Setting aside agreements on spousal support, s. 164
• Reviews of spousal support, ss. 168 and 169
• Post mortem support applications, s. 171

Part VIII: Children’s property

No substantive case law

• Guardian not automatically entitled to receive child’s property, s. 176
• Delivery of small property to child, s. 178
• Appointment of trustee, s. 179
• Delivery of large property to child, s. 181

Part IX: Family violence

“Family member”, s. 182

Father qualifies as “at-risk family member” to obtain protection order with respect to his adult son  

D.J.K. v J.J.K., 2013 BCPC 223

Person is not an “at-risk family member” if not “physically threatened” and family violence not alleged 

Whitelock v Whitelock, 2014 BCSC 1184

Protection orders, s. 183

Order will not be made in absence of finding that family violence is likely to occur  

Hughes v Erickson, 2014 BCSC 1952; Cabezas v Maxim, 2014 BCSC 767

“Even a single act” of physical violence may suggest that violence is likely to occur in the future, “likely” should be interpreted bearing in mind the potential gravity of the violence  

Dawson v Dawson, 2014 BCSC 44

History of psychological and emotional abuse constitutes risk supporting protection order, even when probation order is in place  

N.P. v I.V., 2013 BCSC 1323

Evidence of interference with property and trespassing may support protection order, even without proof as to identity of perpetrator  

Pellowski v Wright, 2014 BCSC 753

Making protection orders, s. 184

Party’s disappointment with result of application may increase the risk of violence, supporting protection order  

Chancellor v Chancellor, 2013 BCSC 1519

Court must have evidence of one of s. 184 risk factors to determine if family violence likely to occur, applicant’s assertion of risk or fear not sufficient  

Hughes v Erickson, 2014 BCSC 1952; Whitelock v Whitelock, 2014 BCSC 1184

No substantive case law

• Additional considerations where child is  a family member, s. 185
• Without notice orders, s. 186
• Changing or cancelling protection orders, s. 187
• Enforcement of protection orders, s. 188
• Conflict between orders, s. 189
• Extraprovincial orders, s. 191

Part X: Court processes

Time limits, s. 198

Spouses separating within two years of the Family Law Act coming into force are “spouses” for the purposes of the Family Law Act  

Meservy v Field, 2013 BCSC 2378

Cannot amend an existing claim brought within the Family Relations Act time limits to claim property under the Family Law Act if separation occurred more than two years of the Family Law Act coming into force

P.N.K. v C.L., 2013 BCSC 1856

Conduct of proceedings, s. 199

Section used to support making of conduct order  

C.P. v B.C., 2013 BCPC 112

… to support levying of fine for non-disclosure  

J.D.G. v J.J.V., 2013 BCSC 1274

… to support relaxing rules of evidence  

D.M.P. v G.E.A. 2013 BCPC 117

… to support court’s refusal to allow further adjournment of trial  

McDermott v McDermott, 2014 BCSC 1238

Children’s lawyer, s. 203

Applicant must establish that the degree of conflict is such that the parties’ ability to act in children’s best interests is significantly impaired; however, inability to act reasonably in connection with another party’s time with the children doesn’t necessarily amount to significant impairment of ability to act in children’s best interests  

K.L.K. v E.J.G.K., 2013 BCSC 2030

Leave to intervene, s. 204

Test: proposed intervenor must have a broad representative base, a direct interest in the proceeding, the issue before the court is suitable for intervention  

M.J.S. v A.D., 2013 BCPC 230

See Freldman v MacGarvie, 2012 BCCA 109 on the issue

Needs of the child assessments, s. 211

Family Law Act focuses on assessment of child’s circumstances rather than “family matter”, but general principles of ordering assessments under s. 211 unchanged from ordering reports under Family Relations Act  

T.N. v J.C.N., 2013 BCSC 1870

Threshold justifying order for assessment is “quite low”  

Smith v Smith, 2014 BCSC 61; Keith v MacMillan, 2014 BCSC 1352

Useful where conflicting evidence on parenting qualities, assessment helpful to obtain insight into parenting, child’s wellbeing  

C.M.L.S. v F.C.M.S., 2014 BCSC 1450

… where parents’ dysfunction leaves them unable to objectively perceive child’s best interests  

Keith v MacMillan, 2014 BCSC 1352

… where views of child report needed  

M.J.A. v R.D.A., 2014 BCSC 1222

... where objective view of child’s best interests is needed  

M.M. v C.J., 2014 BCSC 6

… where necessary to determine child’s preference as to residence  

Fox v Fox, 2013 BCSC 691

… where necessary to determine child’s preference as to parenting schedule  

L.I.W. v T.R.W., 2014 BCSC 1748

Court may “place much reliance on the findings and recommendations”  

M.M. v C.J., 2014 BCSC 6

However, assessor must not decide ultimate question or recommend orders for parenting time  

T.C. v S.C., 2013 BCPC 217

Court may draw its own conclusions from information collected by assessor  

T.C. v S.C., 2013 BCPC 217

Enforcing disclosure, s. 213

Provision intended to equip court with more tools to address wilful non- and late disclosure  

J.D.G. v J.J.V., 2013 BCSC 1274

Severity of order depends on degree of non-disclosure, reasons for non-disclosure and date when disclosure finally made 

J.D.G. v J.J.V., 2013 BCSC 1274

Court should not make anticipatory orders  

Crerar v Crerar, 2013 BCSC 2244

Fine of $500, disclosure of complex information made before hearing  

J.D.G. v J.J.V., 2013 BCSC 1274

…of $2,880 for failing to disclose basic income information, aggravated by wish to avoid child support; reduced from $4,000 because of limited financial resources  

J.C.P. v J.B., 2013 BCPC 297

…of $2,500 because of delay of 11 months and failure to take even preliminary steps toward producing financial statement  

Cully v Cully, 2013 BCSC 2457

…of $500, as disclosure made prior to hearing and respondent’s lawyer’s cause of some of delay  

Doman v Ciccozzi, 2014 BCSC 866

…of $2,000 ordered where information provided was “incomplete, false and misleading”  

MacGrotty v MacGrotty, 2014 BCSC 317

…of $500 ordered where respondent breached order with deadline  

M.L.D. v K.J.E., 2014 BCPC 221

Respondent must be given notice of intention to seek fine before a fine will be ordered  

T.M.T. v J.P.T., 2013 BCPC 352

Misuse of court process, s. 221

Order under this provision amounts to finding that respondent is vexatious litigant  

K.L.J. v E.J.G.K., 2013 BCSC 2030

Relief more limited than under Supreme Court Act s. 18 as cannot generally bar legal proceedings, just within an existing proceeding, but test is less stringent because doesn’t require proof that respondent has habitually and persistently instituted vexatious proceedings  

Dawson v Dawson, 2014 BCSC 44

Order made against grandparents interfering the litigation, “resulting in extended litigation and numerous frivolous applications to the court,” plus $2,000 fine  

M.J.S. v A.D., 2013 BCPC 230

… against party repeatedly attempting to revisit an issue, amounting to a misuse of process  

Dawson v Dawson, 2014 BCSC 44

… against both parties where litigation had lasted for four years and trial could have been completed in less than 20 days  

J.C.P. v J.B., 2013 BCPC 297

Restricting communications, s. 225

Order on court’s motion requiring parties not to speak derogatorily about each other in front of the child, not to speak about proceeding with child, to communicate about the child by text or email  

Ferguson v Ferguson, 2014 BCSC 216

Consent order restricting communication to text or email  

Hughes v Erickson, 2014 BCSC 1952

Order on court’s motion prohibiting direct communication and restricting to email on child-related subjects  

L.D.M. v R.H.M., 2014 BCPC 98

Orders respecting residence, s. 226

Although s. 226 is not linked to family violence, finding of violence would be factor in application for exclusive occupancy  

J.R.E. v 07----8 B.C. Ltd., 2013 BCSC 2038

Enforcing conduct orders, s. 228

Section only applies to previously made conduct orders, order shouldn’t be anticipatory  

K.L.K. v E.J.G.K., 2013 BCSC 2030; Crerar v Crerar, 2013 BCSC 2244

Extraordinary enforcement, s. 231

Following conclusion parenting time wrongfully withheld, order made for police apprehension in event of further withholding  

Singh v Singh, 2014 BCSC 651

After parent removing child from daycare to accommodate work schedule without consent of other parent, parent ordered not to further remove child and arrest order made in event of breach  

A.L. v K.H., 2013 BCSC 1943

Applicant given liberty to apply under s. 231 in event of future breach of orders restricting respondent’s communication with applicant’s counsel  

Dawson v Dawson, 2014 BCSC 44

No substantive case law

• Provincial Court enforcement of Supreme Court orders, s. 195
• Lawyers’ compliance with s. 8(2) duties regarding family dispute resolution processes, s. 197
• Legal capacity of children, s. 201
• Receipt of children’s evidence, s. 202
• Guardianship of treaty first nations children, ss. 208, 209
• Property disputes involving treaty first nations land, s. 210
• Orders respecting agreements, s. 214
• Orders on behalf of child, s. 220
• General enforcement provisions, s. 230

Part XIII: Transitional provisions

Parenting transition rules, s. 251

Interim Family Relations Act order addressing only access must not be read as order denying custody or guardianship where those issues had not been ruled on  

J.C.P. v J.B., 2013 BCPC 94

Order on primary residence not addressing custody or guardianship does not disturb s. 39 presumption of guardianship  

S.T.H. v R.M.G., 2013 BCPC 114

Ex parte interim order for sole custody and sole guardianship under Family Relations Act makes party child’s only guardian under Family Law Act until varied  

L.A.M.G. v C.S., 2014 BCPC 172

Order for sole custody with no reference to guardianship deprives parent without custody of status as guardian under Family Law Act  

P.A.G. v M.S., 2014 BCPC 158

Coming into force of Family Law Act not a change in circumstances justifying setting aside of agreement for sole custody 

A.J.H. v L.C.H., 2013 BCSC 900

Property transition rules, s. 252

Debts known of at the time of trial of an Family Relations Act property claim are res judicata and cannot be relitigated as a family debt by an action under the Family Law Act

G.M.W. v D.P.W., 2014 BCSC 482

This provision does not apply to persons who are not spouses under the Family Relations Act

Meservy v Field, 2013 BCSC 2378

However, unmarried spouse with action for unjust enrichment started prior to coming into force of Family Law Act must amend pleadings to claim division of property under Family Law Act for Family Law Act to apply

McKenzie v Perestrelo, 2014 BCCA 161

Spouses can agree to have Family Law Act apply to property proceedings commenced under the Family Relations Act

Asselin v Roy, 2013 BCSC 1681

A party cannot amend Family Relations Act property proceeding to claim under the Family Law Act  contrary to s. 252, without consent of other spouse

G.G. v M.A., 2013 BCSC 1834; Yucson v Yucson, 2014 BCSC 1614

Effect of transition, s. 254

Interpretation Act s. 36 on repeal and replacement of legislation inapplicable to coming into force of Family Law Act  not justifying application to vary Family Relations Act order to compliance with new terms on child support obligations of stepparents  

K.H.M. v J.M.F., 2013 BCPC 56

Other noteworthy cases

Know of any other helpful cases? Please post a comment with the name of the case and a short description of what the court had to say about the Family Law Act.

Setting Aside Agreements: Helpful resource from West Coast LEAF

I've just stumbled across a new — well, new to me — booklet from West Coast LEAF, Separation Agreements: Your Right to Fairness (PDF). This resource is aimed at people who have signed a separation agreement but have had second thoughts and want to set it aside because inadequate disclosure was made when the agreement was signed or because there was a power imbalance between the parties to the agreement. I know of lots of resources geared to helping people make separation agreements and file them in court, but this is the first I know of to focus on setting agreements aside.

In a nutshell, separating spouses and parents can resolve the issues arising from the end of their relationship by reaching an informal agreement, making a formal agreement, like a separation agreement, where everything is written down and the agreement is signed before a witness, or getting a court order. Informal agreements can be problematic because it can hard to prove the terms of the deal in the event of a disagreement. Going to court can be horribly expensive and take a great deal of time, and the decision will be made by someone who knows very little about the family.

Separation agreements, on the other hand, are a great way to go because the parties are able to negotiate the best solution to their particular problems in light of their particular circumstances; separation agreements can even include terms that can't be included in court orders. On top of this, agreements about parenting, child support and spousal support can be filed in court and enforced as if they were court orders, and the Family Law Act prohibits the court from making orders about spousal support and property and debt in the face of an agreement unless it sets the agreement aside.

Key to all of this, however, is the idea of negotiation, specifically fair negotiation, and this is where West Coast LEAF's special expertise comes in. West Coast LEAF was an intervenor in the famous (to family law lawyers) case of Rick v Brandsema, in which the Supreme Court of Canada said that separation agreements, even those signed after having legal advice, can be set aside if: one of the spouses made inadequate, incomplete or misleading disclosure of his or her finances; or, one of the spouses took advantage of a particular weakness or vulnerability of the other spouse, such as the spouse's ignorance, emotional state or precarious mental health.

The decision in Rick was profoundly influential on how the part of the Family Law Act about the setting aside of agreements about property was written. Here are the important parts of s. 93 of the act:

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; 

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; 

(c) a spouse did not understand the nature or consequences of the agreement; 

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement. 

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made; 

(b) the intention of the spouses, in making the agreement, to achieve certainty; 

(c) the degree to which the spouses relied on the terms of the agreement.

Subsection (3) summarizes the key points in Rick and these points are what West Coast LEAF deals with in its booklet. Setting Aside Agreements covers:

• the reasons why a separation agreement could be set aside;
• how to fairly negotiate a separation agreement;
• how to provide proper financial disclosure; and,
• how to work with a lawyer if you need to go to court to have a separation agreement set aside.

Obviously, Setting Aside Agreements can't cover all that there is to say on the subject, but it's a good, useful and very accessible starting point. My wikibook, JP Boyd on Family Law, is another place to get some basic information and discusses setting aside agreements on:

• cohabitation agreements, marriage agreements and separation agreements;
• enforcing agreements and the general principles of setting aside or changing agreements;
• changing agreements about children;
• changing agreements about child support and spousal support; and,
• changing agreements about property and debt.

Amendment to Code of Conduct Allows Lawyer Mediators to Give Advice and Handle Joint Divorces

The latest quarterly amendment update (PDF) to the Legal Profession Act, Law Society Rules and Code of Professional Conduct has been released to lawyers by the Law Society of British Columbia.

Amid the usual folderol that can be safely ignored by all except those in trouble with the Law Society are two important amendments to the commentary to s. 5.7 of the Code of Conduct, titled "Role of mediator."

1. The comment that lawyers should not give advice when acting as mediator has been rescinded. In its place, lawyers are referred to Appendix B of the Code on family law mediation, arbitration and parenting coordination which contains this modest stricture at s. 3: 

A lawyer who acts as a family law mediator or arbitrator or parenting coordinator for participants who are unrepresented must:

(a) urge each unrepresented adult participant to obtain independent legal advice or representation, both before the commencement of the dispute resolution process and at any stage before an agreement between the participants is executed; 

(b) take care to see that the unrepresented participant is not proceeding under the impression that the lawyer will protect his or her interests;  

(c) make it clear to the unrepresented participant that the lawyer is acting exclusively in a neutral capacity, and not as counsel for either participant; and  

(d) explain the lawyer’s role in the dispute resolution process, including the scope and duration of the lawyer’s powers. 

2. A new comment has been added to allow mediators to act for both parties in a joint divorce action.

A lawyer who has acted as a mediator in a family law matter may act for both spouses in a divorce action provided that all relief is sought by consent and both parties have received independent legal advice in relation to the matter.

Both of these amendments are aimed at dealing with the conflict issue that is believed to arise when lawyers act as mediators, namely that in "acting" simultaneously for two people opposed in interest the lawyer is in a conflict of interest, which had previously been addressed by the fiction of the law society's rule that lawyers must not give legal advice and must instead give only legal information. The reality of practice is that the lawyer mediator gives abundant "legal information" to both parties as an essential part of the lawyer's toolkit to reach settlement; it is a relief that the fiction has been recognized and dealt with.

The same conflict issue arises when the lawyer mediator is asked to get the parties to a mediation divorced, which is often a more or less a natural follow up to the lawyer's settlement of the parties' dispute. There are two types of basic divorce claim, the "sole divorce" where one spouse takes the initiative and sues the other for a divorce, and the "joint divorce" where the spouses cooperate and ask the court for the divorce together. The sole divorce is the usual way of doing things when a lawyer is involved. The joint divorce, however, is both faster and cheaper as you needn't pay for a process server or wait for the expiry of the reply period. However, a lawyer cannot "act" for the parties to a joint divorce as they are, theoretically, opposed in interest; hence the conflict. As a result, lawyers would typically offer to prepare the forms for the couple but not go on record as acting for either of them which, while very practical, simply ducks the issue and fails to obviate the conflict. The amendment allowing lawyer mediators to handle joint divorces is timely and most welcome.

Polyamory and the Family Law Act: Surprisingly Happy Bedfellows

In summer of 2013, the Canadian Polyamory Advocacy Association asked me if I could speak to a convention they were hosting on the subject of polyamory and British Columbia's new Family Law Act. Of course I said yes.

The Family Law Act is the province's general law about family and family breakdown. In the old days, this area of the law used to be called the law of husband and wife or the law of domestic relations. "Domestic relations" isn't such a bad term, because the range of legal issues and interested parties the law addresses isn't just about husbands and wives. The Family Law Act applies to:

• people who are, or used to be, married spouses;
• people who are, or used to be, unmarried spouses, which usually means that the couple lived together for at least two years in a "marriage-like" relationship;
• people who are parents of a child together;
• people who are family members when family violence is or may be a problem; 
• people parents ask to become guardians of their children; and, 
• anyone, such as a grandparent, who has an interest in caring for or spending time with a child.

Besides, we're well past the age of Leave it to Beaver, where all couples were straight, married and had two children. Family law just isn't as it used to be.

Anyhow, as I was preparing my presentation, I was struck by how very well the Family Law Act fit with the circumstances and legal interests of people involved in polyamorous or polyfidelitous relationships. Far from the moralizing finger wag of the federal Civil Marriage Act, the new provincial law practically throws the door open to non-binary spousal relationships! To be fair, I expect that this result was unanticipated, but it is nonetheless welcome and astonishingly progressive.

Who is a "spouse"

Not too long ago, the only kind of legal "spouse" there was, was a married spouse. That's still the case under the federal Divorce Act, which defines spouse as "either of two persons who are married to each other."

In 1972, the provincial Family Relations Act, which was brand new at that point, gave unmarried couples who'd lived together for at least two years the right to claim spousal support from each other, and in 1978, the law was changed to define "spouse" as including married spouses and people who had lived together for at least two years in a marriage-like relationship.

We sometimes used to call unmarried couples in long-term relationships "common-law spouses," but this term was horribly misleading as many people in such relationships believed themselves to actually be married and in need of a divorce when they split up. The term actually actually refers to a common law rule from the middle ages that allowed to people to express their commitment to each other before friends and family and be validly married to each other without the necessity of a priest's incantations and wand-waving.

Under the Family Law Act now, spouse includes married spouses as well as:

• someone who "has lived with another person in a marriage-like relationship" and "has done so for a continuous period of at least two years;"
• someone who "has lived with another person in a marriage-like relationship" for less than two years and "has had a child with the other person;" and,
• people who used to be spouses.

What being a "spouse" gets you

During the spousal relationship, someone who is a spouse is obliged to provide the other spouse with the "necessaries of life" under the Criminal Code. The old common law rule is a bit more specific and requires husbands to provide their wives with adequate food, clothing and shelter, although he had a fair bit to say about what standard "adequate" meant.

After the spousal relationship ends, married spouses can use the Divorce Act to ask for spousal support, and for custody and child support for step-children as well as the couple's own children.

Under the Family Law Act, married spouses and unmarried spouses can ask for orders about spousal support, child support, parenting arrangements and contact, and married spouses and unmarried spouses who have been together for at least two years can also ask for orders about family property and family debt.

Other laws give spouses other rights, such as the family rate for the Medical Services Plan, the right to the Old Age Security spousal allowance or to share in each other's Canada Pension Plan credits. The key question you have to ask for all of these laws, including the Divorce Act and the Family Law Act, is this: "do I qualify as a spouse under this particular law?"

Spousal relationships

Under the federal Divorce Act and Civil Marriage Act, only two people can be legally married to each other. In fact, the Criminal Code makes it an offence for someone who is married to "go through a form of marriage with another person." Each person is a "spouse" of the other person:

A and B are each in a married spousal relationship with the other. Because of the legislation, it is not possible for A or B to be also in a married spousal relationship with anyone else.

Under the Family Law Act, and the old Family Relations Act, someone could qualify as an unmarried spouse while still being a married spouse. Most of this time, this happened when a married person had separated, started a new relationship, and lived with the new person for long enough to qualify as an unmarried spouse without being divorced from the first spouse. A number of my clients were quite unhappy to find themselves in this position. Here's how the spousal relationships work in a case like this:

A is in a married spousal relationship with B, but also in an unmarried spousal relationship with C.

Now you might think that the Family Law Act definition of an unmarried spouse as someone who "has lived with another person in a marriage-like relationship" would restrict unmarried spousal relationships to only one other person. In fact, I think it does. However, nothing in the act says that you can only be in one spousal relationship at a time!

Assuming that A, B and C have all lived together for at least two years in marriage-like relationships, A is in an unmarried spousal relationship with B and in a separate unmarried spousal relationship with C. B is in a spousal relationship with A and in another spousal relationship C. C is likewise in a spousal relationship with A and in a spousal relationship with B.

In fact, things could be yet more complicated, as long as each relationship meets the criteria of (a) living tother (b) for at least two years in a (c) marriage-like relationship. Here's a diagram of the spousal relationships among four people in a polyamorous relationship:

In this case, A is in three simultaneous relationships, one with B, another with C and yet another with D.

Lest anyone get too hung up on what "marriage-like" means, that's been addressed by the British Columbia Court of Appeal in a 1998 case called Takacs v Gallo as describing the couple's relationship with and commitment to each other, including whether the couple does chores for each other, sleeps together, shares financial obligations, goes to social functions together and so on.

Children

Under the Family Law Act, parents who live together are presumed to both be guardians of their children. This extends to people who are parents and had a child using a means of assisted reproduction. In fact, as a result of ss. 20, 29 and 30, a child could have up to five parents, all of whom are the child's guardians:

• up to two people who intended to have the child;
• a donor of sperm;
• a donor of ovum; and,
• a surrogate mother.

If a member of a polyamorous relationship happens not to qualify as the guardian of a child, the person can apply for a court order making them a guardian under s. 51.

Being a guardian is important, as only guardians have parental responsibilities, which means the right to make parenting decisions about all of the important aspects of a child's life, from choice of school to choice of health care, as well as having day-to-day care and control of a child.

Child support

Under s. 146 of the Family Law Act, the people who may have to pay child support include parents, guardians with parental responsibilities and stepparents. A parent, as we've discussed, includes biological parents as well as parents through assisted reproduction. A guardian includes people who aren't parents. Stepparent means people who qualify as the spouse of a parent and lived with the parent and the parent's child.

As a result, anyone in a cohabiting polyamorous relationship who qualifies as the spouse of someone in the relationship will be a stepparent of the person's children and be obliged to pay child support. Someone who is the parent of a child of a person in a polyamorous relationship will have to pay child support as you'd expect.

Spousal support

Under s. 160, if a spouse is entitled to receive spousal support, the other spouse has a duty to pay it. In a polyamorous relationship, this means that a dependant spouse might be entitled to collect spousal support from each other person with whom the dependant spouse is in a spousal relationship.

Family property and family debt

This is where the Family Law Act gets tricky.

Under s. 80, "spouses are both entitled to family property and responsible for family debt," and on separation "each spouse" gets "an undivided half interest in all family property ... and is equally responsible for family debt." "Both" means that there are two spouses in a spousal relationship, which is reinforced by the idea that each is entitled to "half" of the property and debt. I don't think that this section necessarily deprives any of the spouses in a polyamorous relationship of a property right, but it does mean that it's best if the relationships collapses all at once rather than one spouse at a time.

If the relationship collapses all at once, each spouse is entitled to half of the family property accumulating with each other spouse. A gets half of the property with B and half of the property with C. B gets half of the property with A and half of the property with C, and C gets half of the property with A, and half of the property with B. Once it all shakes out, everyone has an equal interest in all of the family property, and a three-way split it is.

On the other hand, say the spousal relationship between A and B craps out while the spousal relationship between A and C and B and C survives. A and B each take half of the family property, and C gets nothing until C's relationship with A or B terminates; when C's relationship with A terminates, C gets only half of A's half share! Instead of getting 50% of the total property, C gets 25% of the property. In other words, if you're in a polyamorous relationship and things are going sour, it's best to be the one who gets out first.

Cohabitation agreements

Interesting stuff, isn't this? Anyhow, what it all boils down to is that, apart from some awkwardness in relation to dividing property, people in polyamorous spousal relationships seem to be subject to pretty much the same legal rights and responsibilities as people in binary spousal relationships.

Because the law applies to people polyamorous relationships almost as it does to people in binary relationships, and because people in polyamorous relationships generally tend to enter them in a fully conscious manner, knowing what it is they're getting into, it makes sense that the people involved would also plan for the breakdown of their relationship. This will not only allow everyone to make make arrangements about:

• having children, and the parentage of children if assisted reproduction is going to be used;
• child care responsibilities during the relationship;
• contribution to household expenses and household chores;
• management of household finances, including joint accounts;
• purchasing new assets, and how those assets will be owned; and,
• new partners entering the relationship and existing partners exiting,

it'll help everyone figure out how those problems about the sharing of family property and family debt I just mentioned will be handled. A cohabitation agreement will help everyone manage the relationship and navigate the tricky thicket of legal issues that will arise when one or more partners leave.

As it happens, I know a number of talented lawyers who have prepared cohabitation agreements for people involved in polyamorous relationships, namely barbara findlay, Agnes Huang, Samantha Simpson and Zara Suleman, and I know a few others who are good lawyers as well and would be up to the challenge. Feel free to contact me for a referral.

Trial Starts Today for Bountiful Polygamists

CBC reports that the trial of the polygamy and child trafficking charges against two leaders of the Fundamentalist Church of Jesus Christ of Latter-day Saints from Bountiful, British Columbia starts today in Creston. It will be interesting to see how the trial turns out, given the opinions the provincial government has received from not one but two special prosecutors that the Criminal Code prohibitions against polygamy are likely an unconstitutional contravention of the Charter of Rights and Freedoms and the positive but restricting opinion of the BC Supreme Court on the question.

I have written about the polygamy issue previously in this blog:

• "Polygamy: The Legal Background" provides a synopsis of the old laws on marriage and divorce and the religious climate in which the criminal sanctions against polygamy originated.
• "Big Love Busted" reports on the 2009 arrest of the two leaders of the Fundamentalist Church of Jesus Christ of Latter-day Saints on polygamy charges and summarizes the relevant provisions of the Criminal Code.
• "Supreme Court Releases Decision in Polygamy Reference" summarizes the decision of the British Columbia Supreme Court on the provincial government's request for it to determine whether those provisions of the Criminal Code pass constitutional muster and the court's interpretation of those provisions.
• "No Further Reference of Polygamy Prohibition" briefly digests the provincial government's not to take the decision in the Polygamy Reference to the Court of Appeal.

This discussion about the criminality — and constitutionality — of the antiquated and pietistic prohibition against polygamy contrasts strikingly with what I perceive to be an increasing social tolerance of alternative family structures, including the polyamorist or polyfidelitous relationships of mature, informed and consenting adults. As mentioned in my post "Rethinking Marriage: Beta Marriages, Renewable-term Marriages and Other Interesting Ideas," the provincial Family Law Act actually supports and provides fairly comprehensive rights to those involved in polyamorous relationships, which I will write about shortly.

Update: 10 October 2014

Oh well, as it turns out the trial just got adjourned until 4 December 2014. According to the Calgary Herald, another jewel in the Postmedia Network empire's increasingly massive crown, the two accused appeared with only one wife in tow and the case was put over to allow the men to retain counsel. That their trial was nigh must somehow have escaped their attention. These things happen.

Children's Affidavits: Procedures, Cautions and Concerns

I was retained a few years ago to draft the affidavit of a fourteen-year-old girl for use by her father in an application to vary her parenting schedule. The child was bright, wanted to have her say and was aware of the probable impact of her affidavit on her relationship with her mother. The nature of the child's evidence made the experience unusually moving, and caused me to ruminate on the issue of children's affidavits; this brief note summarizes some of my thoughts.

The affidavit of a child can occasionally be helpful to your client's case. As the British Columbia Supreme Court put it in the 2012 case of L.E.G. v A.G., "a child's wishes can be a very significant consideration in a custody case." This strategy, however, can be highly problematic, and the difficulties therefore lie in making the decision to obtain the affidavit, and, having made that decision, in actually obtaining the affidavit.

I. Cautionary Considerations

A child swearing an affidavit in the course of litigation between his or her parents becomes involved in that litigation. The decision to obtain the child's affidavit must not be made lightly; as the Manitoba Court of Appeal said in a 1978 case called Jay v Jay, "it can never be in the best interests of children to be placed in a position where they become a part of the adversarial dispute between parents." I agree.

Giving an affidavit forces the child to take a position.

Although children, particularly older children, may form some degree of alignment with a parent following separation, many children manage the stress of their parents' separation by remaining noncommittal or adopting a flexible approach to the truth, providing each parent with information tailored in varying degrees to what the parent wants to hear.

Dad: "I made your favourite pizza, sausage and pepperoni!"
Child: "Awesome, my favourite! Your pizza's the best." 

Mum: "How was the dinner your dad made last night?"
Child: "Disgusting. I hate pepperoni."

Giving evidence in an affidavit forces the child to present a single statement of events and preferences. This may rob the child of a valuable coping strategy and exacerbate the stress of moving between homes.

Giving an affidavit increases the possibility of the child forming an alignment or choosing sides.

A child's evidence will inevitably favour one parent's perspective over the other. Depending on the seriousness of the evidence, giving an affidavit may entrench negative feelings and damage the child's relationship with the non-favoured parent, fostering a sense of allegiance toward the favoured parent and increasing the likelihood of estrangement from the other parent. This can be particularly problematic where the child's relationship with the non-favoured parent is already fragile or the seeds of alignment are already present.

Making matters worse, affidavits create a permanent record of the child's statements. Once the child’s evidence is written down, it's there for all time to be worried over, reread and fretted about. Depending on the nature of the child’s evidence, the affidavit may damage the child's the relationship with the non-favoured parent well into the future and significantly impede reconciliation.

Giving an affidavit exposes the child to the possibility of a further role in the litigation.

Under s. 10 of the Canada Evidence Act and the provisions of most provincial evidence acts, a person preparing a written statement can be cross-examined on his or her affidavit. The potential subject matter of such examinations is broad and would include not only the issues addressed in the affidavit, but the child's truthfulness and credibility; the circumstances under which the affidavit was elicited and prepared; and the extent of the client's involvement in obtaining the affidavit and influence over its content.

Taking an affidavit exposes the drafting lawyer to the possibility of a role in the litigation.

Legitimate areas of enquiry at trial will reasonably include the circumstances under which the drafting lawyer came to see the child, the information provided to the lawyer, and the extent to which the content of the affidavit had its origin in the child’s mind versus another source. The drafting lawyer will be the obvious source of information.

In my view, the child isn't the drafting lawyer's client, the client is the person retaining the lawyers' services, and whatever privilege is to be had likely extends to the lawyer's communication with that party and counsel on the party's behalf, but not to his or her communication with the child.

II. The Canada Evidence Act

The provisions of the Canada Evidence Act relevant to children's affidavits are ss. 16 and 16.1, and the provisions of these sections are instructive to both the lawyer considering obtaining the affidavit of a child and the lawyer retained to prepare one. In essence, children who are fourteen and older are presumed to be competent to give evidence, including by affidavit, in the manner of adult witnesses. Counsel seeking to have the affidavit of such a child excluded must be prepared to challenge the mental capacity of the child; I cannot imagine many children who would be receptive to this line of enquiry.

Children younger than fourteen are competent to give evidence as long as they can understand and answer questions, however they must give their evidence on promising to tell the truth, not upon oath or affirmation.

III. Choosing the Drafter

Prudence suggests that the drafting lawyer be someone other than the lawyer seeking to obtain the affidavit, for two reasons. Firstly, the lawyer seeking the affidavit will want to minimize the perception of the client's influence in obtaining the affidavit; see for example the excoriating comments of the British Columbia Provincial Court in the 2009 case of Director of Child Family and Community Service v. T.T. Secondly, the lawyer seeking the affidavit will want to minimize the likelihood of becoming a witness in his or her own trial, explaining how he or she assessed the child's competence to give evidence and his or her role in preparing the child’s affidavit; there is no privilege in the relationship between counsel and witness.

The T.T. case, by the way, is well worth a read.

IV. Deciding to Obtain the Affidavit

Despite the indulgent approach of the Canada Evidence Act toward the receipt of children's evidence, the lawyer seeking the affidavit will want to ensure that the child's affidavit will be useful to the client and advance the client's case before taking any further steps. If the proposed affidavit will serve neither purpose, stop.

The evidence the lawyer hopes to obtain should be relevant, critical to the case, concise, clear and unambiguous, and capable of interpretation without reference to other materials. Is the child likely able to deliver?

Consider the age and maturity of the child.

Will the child be able to express him- or herself to drafting counsel? Is the child capable of recalling and describing events in a comprehensible, ordered manner?

Consider the child's ability to express a preference.

Is the child's sense of self sufficiently developed to form an opinion? To what extent is the child likely to have formed his or her opinions through independent reasoning? The judge in M.E.S. v D.A.S., a 2001 case of the Alberta Court of Queen's Bench, had this to say on the subject:

"In the case at bar, the two children's affidavits in this matter are clearly drafted by the husband in his usual offensive manner. The many points made in the two children's affidavits contain the classic pattern and trademark of the husband's voluminous other writings in this file. 

"To allow these two affidavits in would countenance yet another abuse of the court process by the husband. Effectively, entering the affidavits would be tantamount to allowing the husband to advance and advocate his case further in his own words under the guise of and cloak of his children's reflections."

The court made comments to a similar effect in Hackett v Leung, a 2010 case of the Ontario Superior Court of Justice:

"[The child's affidavit] was filed by the mother in these proceedings. Based on the submissions that I have received, I am satisfied that the Affidavit was not written at the request of [the child] for the purposes of her seeking to be heard independently. Rather, the Affidavit was sought by her mother, for her mother's purposes, and to support her mother's position. Clearly, this pits this child against her father in a public forum. In my view, it exhibits poor judgment and selfishness on the part of the mother, and is a clear instance of the mother putting her own self-interests ahead of her daughter. In my view, it is inappropriate, in the extreme, to involve [the child] in this conflict in this way."

These are not the sort of conclusions you will want the court to reach.

Consider the nature of the evidence you would like to obtain relative to the position you will be arguing.

Will the child's affidavit actually add something to your case? Is the evidence you are hoping to obtain essential? If the answer to both questions is no, stop.

Consider the nature of the evidence you would like to obtain relative to the child.

Will the child be comfortable discussing the subjects about which you are hoping to obtain evidence? Will the child be comfortable expressing an opinion? In part these concerns hark back to my earlier comments about alignment (imagine, for example, the likely consequences of asking a child to describe an episode of physical conflict between his or her parents!); in part, it is a matter of being sensitive to the child's comfort level and the degree of opprobrium attached to the subject matter the child is being asked to recount.

Consider the child's willingness to provide an affidavit.

Is the child interested in expressing his or views to the court? Does the child want to provide an affidavit? If the child demonstrates any reluctance to give a statement, the lawyer seeking the affidavit should either pull the pin on the project or, at the very least, advise drafting counsel of the child's reluctance as an issue to for him or her explore. Some children are almost chomping at the bit to finally have their say in the dispute between their parents; others, however, are reluctant to enter the fray.

V. Drafting Children's Affidavits

In my view, drafting counsel is free to accept or reject a retainer to draw a child's affidavit as he or she wishes. Whether the parents are joint custodians under the Divorce Act, or mutual guardians under the Family Law Act, is, I think, irrelevant to the lawyer's decision; there is no property in a witness and the making of an affidavit is not a therapeutic endeavour for which parental consent is necessary.

Assuming that the lawyer is prepared to accept the retainer, the lawyer should perform a conflict check in respect of both parents and obtain the following information:

1. the age of the child;
2. the existence of any verbal, linguistic, emotional or mental impediments which might affect the child's capacity to express him- or herself;
3. any deadlines by which the affidavit must be prepared;
4. any particular issues which the affidavit should address; and,
5. the child's probable attitude to preparing the affidavit.

Arrangements should then be made for the child to be brought to the lawyer's office.

Assess the child's basic competence.

A brief conversation with the child should suffice to satisfy the lawyer that the child has the emotional and intellectual maturity to give evidence. Bear in mind that the lawyer is not conducting a psychiatric competence assessment; the lawyer's standard of assessment is his or her own opinion and comfort level, not that of a mental health professional.

Easy ways to open the conversation for drafting lawyers include explaining your role, how you expect the meeting to unfold, and asking basic questions about the child's age, school, extracurricular activities and so forth. If the child understands the questions you are asking and provides you with intelligible, relevant answers, you have established the competence of a child under fourteen.

Confirm that the child wants to make an affidavit and that he or she understands the difference between telling the truth and telling a lie.

The child will be aware that his or her parents are in court. The drafting lawyer should confirm the child's understanding and explain the purpose of the meeting by saying something to the effect of "the judge would like to know how things are for you and what you think about things." This is neutral, true and doesn't place responsibility for the meeting on either parent.

The lawyer should explain that one way of giving telling the court what you think is to write down what you want to say, and that these written statements are called affidavits. Adjusting for the age of the child, the lawyer should: say something to the effect that when people make affidavits they have to tell the truth; ask whether the child understands the difference between telling the truth and telling a lie; and, explain that sometimes there are punishments when someone lies in court.

Children who are younger that fourteen should be asked if they will promise to tell the truth. Child who are fourteen and older need to understand the difference between affirming and swearing to the truthfulness of their statements.

The lawyer should emphasize to the child that if he or she is prepared to continue, the lawyer will be writing an affidavit based on what the child has said, and that the lawyer will ask the child to read the affidavit when it's done to make sure that the lawyer has gotten everything exactly right and just the way the child wants it. The lawyer should make sure that the child understands that it's not just the judge but also his or her parents who will be reading the affidavit, and ask the child to confirm that he or she wants to continue and make the affidavit.

Prepare the content of the affidavit by asking open-ended questions and using the child's own language to the maximum extent possible.

Asking simple questions about where the child goes to school, grade level and sports activities is an easy way of getting into the flow of the affidavit and ease into more difficult questions about the child's parenting schedule and so forth. The drafting lawyer should avoid making a beeline toward the object of the affidavit; this will likely be the most difficult part of the affidavit for the child. The lawyer should head toward his or her goal gradually, asking questions on subjects that get slowly closer to the evidence for which the affidavit is sought. It is important to preserve the integrity of the child’s evidence by asking open-ended questions that do not suggest an answer; most children can be prompted to keep talking and give additional information simply by asking "and then what happened?"

It's also important to remember that the evidence the lawyer is soliciting is the child's evidence, not the truth. If the child believes that his or her parents divorced when they separated or that there's a monster under the bed, so be it; the lawyer should draw the affidavit stating the child's understanding about when his or her parents divorced or where the monsters generally live. The lawyer should not correct the child's errors or act as censor.

The text of the affidavit should be drawn using the child's own language and quirks of phrasing as much as possible. Ideally, the child's parents should be able to hear the child speaking when they read the affidavit.

Give the child ample opportunity to read through and revise the affidavit.

I often read aloud affidavits I am preparing as I type. This gives the child the opportunity to hear what I am writing and offer corrections. It gives me the opportunity to clarify the child's statements – "is this it, have I got that right?" – and it helps the child to take some degree of ownership of both the process and the product. Whatever method the lawyer uses to draw affidavits, the child should be given a complete draft to read, with pen in hand, and offered the unfettered opportunity to take anything out, change anything and put new information in. The lawyer should avoid expressing any impatience, and encourage the child to make any changes he or she wishes: "this is your affidavit, not mine, and it needs to say exactly what you want it to say."

Remind the child of the importance of telling the truth and execute the affidavit.

Finally, when the affidavit is ready to go, the drafting lawyer should tell the child, with some pompous officiousness to underline the importance of the occasion, that he or she is now going to execute the affidavit. For children younger than fourteen, the lawyer should say something to the effect of "do you promise that the things you've said in this affidavit are true?" and take the child's signature. For older children, administering the standard oath or affirmation will do.

I then tell the child that the original copy of the affidavit will be going to the judge, and I always give a copy of the affidavit to the child. It is, after all, the child’s affidavit.

VI. Content Requirements for Children's Affidavits

Statutory requirements.

The Canada Evidence Act provides that children fourteen or older may give evidence on oath or affirmation. Under s. 16.1(6) of the act, however, children under the age of fourteen may not give evidence on oath or affirmation but upon their promise to tell the truth. This will require amendment to both the preamble, the introduction to the affidavit, and the jurat, the part where the person making the affidavit and the lawyer sign the affidavit.

Evidentiary requirements.

Under s. 16.1(3), the evidence of children under the age of fourteen may only be received if the children are able to understand and answer questions. The only person in a position to make this call at the time the affidavit is executed is, of course, the lawyer drafting the affidavit. This will require you to provide evidence on the point, either by a certificate attached to the affidavit or through a separate affidavit of your own.

In a 2007 case of the Manitoba Court of Queen's Bench called McMurray v McMurray, the court described the nature of the evidence required from a lawyer drawing the affidavit of a child:

"Firstly, such evidence should set forth the circumstances as to the independence of counsel swearing the child's affidavit i.e. who contacted them, who drafted the subject affidavit, and how much time was spent with the child? Secondly, who paid for counsel's professional time? Thirdly, and obviously most importantly, did the child deponent in counsel's professional opinion understand the nature of an oath or affirmation and further could the child, hopefully as evidenced by the affidavit, communicate the evidence provided? In other words, did the child volunteer the material and relevant contents of the affidavit to the drafting attorney."

Although this decision was given in the context of local legislation establishing a presumption against the evidence of children under the age of fourteen, the first and second points are applicable to the affidavits of all minors, and the third point would also be applicable to the affidavits of younger children under s. 16.1(3) of the Canada Evidence Act.

VII. Conclusion

Children's affidavits can be highly persuasive in family law cases, particularly when they address matters of importance and express an unambiguous preference which is clearly that of the child. However, merely soliciting the affidavit, whether it's used in court or not, involves the child in the conflict between his or her parents and is fraught with peril as a result. There are other, better means of eliciting children's views and placing them before the court, including views of the child reports and judicial interviews, all of which are discussed in detail in L.E.G. v A.G. In my view the appropriateness of these alternatives should be considered very carefully before the decision to obtain a child's sworn statement is made.

This post is an updated and edited version of an article of mine published previously by the Canadian Bar Association, which in turn was based on a paper I'd written in October 2012, probably for a family law course put on by the Continuing Legal Education Society of BC, although I frankly don't recall which one. I would like to thank a friend and colleague of mine, Alyson Jones, a prominent and talented West Vancouver child and family therapist, for reminding me of the CBA article.