This blog provides updates on important developments in family law in British Columbia and news about changes to the legislation, court procedures and court rules applicable to family law cases and is curated by Collaborative Divorce Vancouver
29 June 2009
Lawyers' Magazine Publishes Rate Survey
Canadian Lawyer has published its 2009 survey of lawyers' fees, which includes the rates charged for common family law activities broken down by region and size of firm.
28 June 2009
Supreme Court of Canada issues Important Judgment
On Friday 26 June 2009 the Supreme Court of Canada released its judgment in A.C., A.C. and A.C. v. Director of Child and Family Services, 2009 SCC 30. The case involves a young woman who, at the age of 14, was forced to undergo a blood transfusion against her wishes in the course of her medical treatment. The child, a Jehovah's Witness, had refused to give her consent to the treatment, whereupon, following a psychiatric assessment, the child was apprehended by the Manitoba child welfare agency which authorized the transfusion on her behalf.
Although this case was largely argued as a breach of the child's rights under the Charter of Rights and Freedoms, it will likely have a huge impact on family law as a result of the court's discussion of the best interests of the child and the weight to be given to a child's wishes in assessing the child's best interests.
Under s. 16(8) the Divorce Act, the child's "best interests" are the sole criterion to be taken into account in making decisions about access and custody, "as determined by reference to the condition, means, needs and other circumstances of the child." The Family Relations Act says much the same thing at s. 24(1), although the FRA provides a more lengthy list of factors and says that the court should also consider the views of the child, "if appropriate."
In family law cases, the courts have been willing to consider the preferences of even very young children, but the amount of weight the court will give those preferences depends entirely on the child's age, development and maturity. Most of the time, this means that the court will listen to wishes of any child able to express them and be increasingly inclined to follow those wishes as the child grows up; the court will take the wishes of 11 year olds quite seriously, it will take the preferences of 14 year olds still more seriously, and it will almost always do what 16 year olds want.
In A.C., the child was 14 years old, almost 15. The Manitoba child welfare law said that the court could authorize medical treatment it believed to be in the child's best interests, with the wishes of children 16 or older being determinative of the issue. As a result, the court's power to force the child to have the transfusion rested wholly on the court's assessment of the child's best interests knowing, however, that the child objected to the treatment.
The court held that the best interests test in the Manitoba law should be considered to operate on a sliding scale, with the child's preferences being given more weight as the child grows older, subject to the court's assessment of the child's maturity. The degree of scrutiny applied in this assessment, however, should increase with the importance of the decision to be made, taking into account:
Although this case was largely argued as a breach of the child's rights under the Charter of Rights and Freedoms, it will likely have a huge impact on family law as a result of the court's discussion of the best interests of the child and the weight to be given to a child's wishes in assessing the child's best interests.
Under s. 16(8) the Divorce Act, the child's "best interests" are the sole criterion to be taken into account in making decisions about access and custody, "as determined by reference to the condition, means, needs and other circumstances of the child." The Family Relations Act says much the same thing at s. 24(1), although the FRA provides a more lengthy list of factors and says that the court should also consider the views of the child, "if appropriate."
In family law cases, the courts have been willing to consider the preferences of even very young children, but the amount of weight the court will give those preferences depends entirely on the child's age, development and maturity. Most of the time, this means that the court will listen to wishes of any child able to express them and be increasingly inclined to follow those wishes as the child grows up; the court will take the wishes of 11 year olds quite seriously, it will take the preferences of 14 year olds still more seriously, and it will almost always do what 16 year olds want.
In A.C., the child was 14 years old, almost 15. The Manitoba child welfare law said that the court could authorize medical treatment it believed to be in the child's best interests, with the wishes of children 16 or older being determinative of the issue. As a result, the court's power to force the child to have the transfusion rested wholly on the court's assessment of the child's best interests knowing, however, that the child objected to the treatment.
The court held that the best interests test in the Manitoba law should be considered to operate on a sliding scale, with the child's preferences being given more weight as the child grows older, subject to the court's assessment of the child's maturity. The degree of scrutiny applied in this assessment, however, should increase with the importance of the decision to be made, taking into account:
- the intellectual capacity and degree of sophistication of child to understand the decision to be made;
- the stability of the child's views and whether they are a true reflection of the child's values and beliefs;
- the impact of the child's lifestyle, family relationships and social affiliations on the child's ability to exercise independent judgment; and,
- the existence of any emotional or psychiatric vulnerabilities impacting on the child's decision-making ability.
18 June 2009
Alberta Minister Pronounces upon the Proper Raising of Children
The CBC has reported that Alberta's Finance Minister, Iris Evans, has pronounced upon the raising of children in a recent speech to the Economic Club of Canada. According to the CBC, Minister Evans said that good parenting means that "when you're raising children, you don't both go off to work and leave them for somebody else to raise."
Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income! One solution would be to raise the Canada Child Tax Benefit and the National Child Benefit Supplement to a level that would enable families to leave a parent in the home, but I'm not sure that such a suggestion would have much appeal to a conservative finance minister.
Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income! One solution would be to raise the Canada Child Tax Benefit and the National Child Benefit Supplement to a level that would enable families to leave a parent in the home, but I'm not sure that such a suggestion would have much appeal to a conservative finance minister.
24 May 2009
New Random Answers to Random Search Terms
I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.
These search terms are all about marriage and divorce.
(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)
>> consequences of getting remarried without getting divorced
This one's easy enough: your new marriage won't be valid.Without a divorce, any other marriage is technically bigamous under the Criminal Code yet also void under the common law.
>> how many years after separation are you considered divorced
Never. Until you get that divorce order you're still married. No marriage is over until a court has made a divorce order, no matter how much time has passed since the spouses separated.
>> is it ungodly to attend a person's third marriage
I don't normally pronounce on religious issues, but this search term was too hard to pass up. If it is ungodly, perhaps you need to find a new religion if you're really prepared to put your religious scruples above your loyalty to a friend and a celebration of his or her happiness.
>> use of the divorce act for common law relationships canada
Also easy: none.
The federal Divorce Act only applies to people who are married to each other or who used to be married to each other. Unmarried couples, including couples who qualify as common-law, only have the provincial Family Relations Act and a few other laws to rely on in resolving the issues arising from their separation.
>> common law marriage divorce needed to end relationship
Common-law couples are not married; there is no such thing as a common-law marriage.
All "common-law" status means is that a couple qualify as "spouses" within the meaning of a particular law. Some laws, like the Family Relations Act and many other provincial laws, define a spouse as someone who is married or someone who has lived in a "marriage-like relationship" with another person for at least two years. Other laws have different definitions of spouse. Most federal laws, for example, only require that the couple have lived together for one year, while laws about welfare eligibility require an even briefer period of cohabitation.
Since common-law couples aren't married, there's no need for them to get a divorce to formally end their relationships. A common-law relationship is over when the couple separates. There's no magic to it, nor any need for a court order.
17 May 2009
Why you DON'T want a cohabitation agreement
Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information. I've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.
Questions about cohabitation agreements come up fairly often in my line of work, and it seems that I'm constantly dealing with this one particular issue: how cohabitation agreements do and do not help to protect assets brought into a relationship. This issue's come up yet again, and I thought I'd write about it in a broader context.
People often think they need a cohabitation agreement when they move in with someone in romantic relationship. That's not true; you don't need a marriage agreement when you marry someone and you don't need a cohabitation agreement when you begin to live with someone.
That being said, there are a handful of good reasons why you might want a cohabitation agreement: if you or your partner are bringing children into the relationship; if you or your partner want to ward against the chance of a spousal support claim when the relationship ends; or, if you want to protect the property you're bringing into the relationship. The last reason is the most common reason people want a cohabitation agreement, and while this strategy may work in other provinces, it doesn't work in British Columbia. In fact, it makes things worse. A lot worse.
To be completely clear: you do not want a cohabitation agreement if you live in British Columbia and the agreement is meant to protect property. Here's why.
The British Columbia Family Relations Act treats married and unmarried couples very differently when it comes to property. For married couples, the act says they should both have an equal share of all of the family assets, regardless of who owns the asset or whether it was brought into the relationship or bought afterward, and most assets will qualify as family assets. For unmarried couples, including common-law couples, the act says nothing at all; unmarried couples are expressly excluded from the parts of the FRA that divide property. Unmarried couples are limited to making property claims under the law of trusts, and that usually produces results that are far, far less generous than the equal split married couples get under the FRA.
In summary...
1. Married Couples: The Family Relations Act presumes that each spouse gets half of all the assets, and almost all assets wind up being part of the pool of assets that get divided. Although this presumption can be challenged, most of the time the assets are split equally or near-equally.
2. Unmarried Couples: The parts of the Family Relations Act that deal with the division of assets don't apply to unmarried couples. Unmarried couples can only make claims against each other's property under the law of trusts, and those claims are tough to prove and hardly ever result in a division close to the division that would have resulted if the couple had been married
This is where s. 120.1 of the Family Relations Act comes into things.
Under s. 120.1, the parts of the FRA that divide property between married couples apply to agreements between unmarried couples that deal with property and would be a marriage agreement had the couple been married. Making things worse, under s. 65 the court has the express authority to order a division of assets other than a marriage agreement calls for if it thinks the terms of the marriage agreement are unfair... and what's unfair? Often a division of assets that is different than the equal split prescribed for married couples.
In other words: if an unmarried couple make a cohabitation agreement about property, the rules about property division for married couples apply to the agreement and the court can divide property using the standards that apply to married couples.
Now, instead of the crappy trust law claims an unmarried couple would have had to suffer through in making a claim to divide assets, the couple have all the benefits of the rules that apply to married couples, including the presumption that a fair division of assets is an equal division of assets. This is hardly the effect most unmarried couples assume a cohabitation agreement is going to have; instead of protecting their assets from division, the agreement has exposed the assets to a potential claim which is much worse than the claim that would have been available without the agreement! A bit counterintuitive, isn't it?
Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information. I've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.
Questions about cohabitation agreements come up fairly often in my line of work, and it seems that I'm constantly dealing with this one particular issue: how cohabitation agreements do and do not help to protect assets brought into a relationship. This issue's come up yet again, and I thought I'd write about it in a broader context.
People often think they need a cohabitation agreement when they move in with someone in romantic relationship. That's not true; you don't need a marriage agreement when you marry someone and you don't need a cohabitation agreement when you begin to live with someone.
That being said, there are a handful of good reasons why you might want a cohabitation agreement: if you or your partner are bringing children into the relationship; if you or your partner want to ward against the chance of a spousal support claim when the relationship ends; or, if you want to protect the property you're bringing into the relationship. The last reason is the most common reason people want a cohabitation agreement, and while this strategy may work in other provinces, it doesn't work in British Columbia. In fact, it makes things worse. A lot worse.
To be completely clear: you do not want a cohabitation agreement if you live in British Columbia and the agreement is meant to protect property. Here's why.
The British Columbia Family Relations Act treats married and unmarried couples very differently when it comes to property. For married couples, the act says they should both have an equal share of all of the family assets, regardless of who owns the asset or whether it was brought into the relationship or bought afterward, and most assets will qualify as family assets. For unmarried couples, including common-law couples, the act says nothing at all; unmarried couples are expressly excluded from the parts of the FRA that divide property. Unmarried couples are limited to making property claims under the law of trusts, and that usually produces results that are far, far less generous than the equal split married couples get under the FRA.
In summary...
1. Married Couples: The Family Relations Act presumes that each spouse gets half of all the assets, and almost all assets wind up being part of the pool of assets that get divided. Although this presumption can be challenged, most of the time the assets are split equally or near-equally.
2. Unmarried Couples: The parts of the Family Relations Act that deal with the division of assets don't apply to unmarried couples. Unmarried couples can only make claims against each other's property under the law of trusts, and those claims are tough to prove and hardly ever result in a division close to the division that would have resulted if the couple had been married
This is where s. 120.1 of the Family Relations Act comes into things.
Under s. 120.1, the parts of the FRA that divide property between married couples apply to agreements between unmarried couples that deal with property and would be a marriage agreement had the couple been married. Making things worse, under s. 65 the court has the express authority to order a division of assets other than a marriage agreement calls for if it thinks the terms of the marriage agreement are unfair... and what's unfair? Often a division of assets that is different than the equal split prescribed for married couples.
In other words: if an unmarried couple make a cohabitation agreement about property, the rules about property division for married couples apply to the agreement and the court can divide property using the standards that apply to married couples.
Now, instead of the crappy trust law claims an unmarried couple would have had to suffer through in making a claim to divide assets, the couple have all the benefits of the rules that apply to married couples, including the presumption that a fair division of assets is an equal division of assets. This is hardly the effect most unmarried couples assume a cohabitation agreement is going to have; instead of protecting their assets from division, the agreement has exposed the assets to a potential claim which is much worse than the claim that would have been available without the agreement! A bit counterintuitive, isn't it?
Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information. I've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.
27 April 2009
Rights of Access Trump Right to Breastfeed
The Globe & Mail has today reported on an interesting case out of the Ontario Supreme Court which addresses a difficult problem: what should the court do when a mother's breastfeeding regimen interferes with the other parent's time with the child?
This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his or her time with the child broken up into two- and three-hour blocks separated by one or two days, the access often has to occur with the other parent standing by. Despite this, no one in their right mind would deny a mother the right to breastfeed an infant, which tends to leave the other parent hanging.
This, at least, is the standard form of the breastfeeding dilemma, which usually resolves itself by the time the child is weaned. On rare occasions, however, a child won't be weaned by the 6 to 24 month mark (www.medicinenet.com), sometimes as a result of the mother's belief in the health benefits of long-term breastfeeding. In cases like this, the other parent's access to the child can become seriously cramped.
In Johne v. Cavannah, however, the judge found that the mother's preference for breastfeeding their 29 month old child had "a secondary impact upon [the father] in that it is used as an excuse to restrict his access." Making things worse, the mother refused to indicate when the child was going to be weaned, leaving the father in limbo.
As a result of the mother's approach, and certain provisions of Ontario's Family Law Act which equally entitles parents to custody, the judge held that the parents should move to a shared custody arrangement and that if the mother wished to continue to breastfeed, she would have to provide the father with bottles of pumped milk.
Update: 28 April 2009
A reader's comment has made me think a bit more about the implications of the Johne v. Cavannah case which deserve some additional discussion.
Fathers (this is a gender-based issue) are often quite vexed by mothers' decision to breastfeed when that decision interferes with their ability to spend time with their children. As I've already said, however, the personal inconvenience of fathers must take a backseat to mothers' reasonable decisions to breastfeed, which comes close to being a fundamental human right if it isn't one already.
Trouble comes calling when a mother continues to breastfeed a child well beyond regional weaning norms, and the father begin to wonder whether or not the mother isn't dragging things out just to prevent him from having the child over night, as opposed to pursuing a legitimate health care objective. This is the issue the court in Johne was called upon to address, but what makes Johne stand out is that the court actually concluded that the mother was intentionally delaying things to frustrate the father's time with the child.
While fathers should certainly look at Johne with hope and take succour in the knowledge that this obstruction to access can be overcome, they should not assume that mothers' right to breastfeed will be set aside for children within the usual nursing age or that it will be easy to get such an order, regardless of the child's age, without proof of the mothers' bad faith.
This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his or her time with the child broken up into two- and three-hour blocks separated by one or two days, the access often has to occur with the other parent standing by. Despite this, no one in their right mind would deny a mother the right to breastfeed an infant, which tends to leave the other parent hanging.
This, at least, is the standard form of the breastfeeding dilemma, which usually resolves itself by the time the child is weaned. On rare occasions, however, a child won't be weaned by the 6 to 24 month mark (www.medicinenet.com), sometimes as a result of the mother's belief in the health benefits of long-term breastfeeding. In cases like this, the other parent's access to the child can become seriously cramped.
In Johne v. Cavannah, however, the judge found that the mother's preference for breastfeeding their 29 month old child had "a secondary impact upon [the father] in that it is used as an excuse to restrict his access." Making things worse, the mother refused to indicate when the child was going to be weaned, leaving the father in limbo.
As a result of the mother's approach, and certain provisions of Ontario's Family Law Act which equally entitles parents to custody, the judge held that the parents should move to a shared custody arrangement and that if the mother wished to continue to breastfeed, she would have to provide the father with bottles of pumped milk.
Update: 28 April 2009
A reader's comment has made me think a bit more about the implications of the Johne v. Cavannah case which deserve some additional discussion.
Fathers (this is a gender-based issue) are often quite vexed by mothers' decision to breastfeed when that decision interferes with their ability to spend time with their children. As I've already said, however, the personal inconvenience of fathers must take a backseat to mothers' reasonable decisions to breastfeed, which comes close to being a fundamental human right if it isn't one already.
Trouble comes calling when a mother continues to breastfeed a child well beyond regional weaning norms, and the father begin to wonder whether or not the mother isn't dragging things out just to prevent him from having the child over night, as opposed to pursuing a legitimate health care objective. This is the issue the court in Johne was called upon to address, but what makes Johne stand out is that the court actually concluded that the mother was intentionally delaying things to frustrate the father's time with the child.
While fathers should certainly look at Johne with hope and take succour in the knowledge that this obstruction to access can be overcome, they should not assume that mothers' right to breastfeed will be set aside for children within the usual nursing age or that it will be easy to get such an order, regardless of the child's age, without proof of the mothers' bad faith.
25 April 2009
BC Supreme Court Issues Important Judgment
Varga v. Varga, 2009 BCSC 416 concerns, among other things, the determination of a husband's obligation to pay child support for two children of his wife's previous relationship and child support for a child of their own relationship when custody of that child was shared.
This case involves two tricky questions about child support: how child support should be calculated when custody is shared; and, how a step-parent's child support should be calculated when someone else also has a responsibility to pay child support. Normally, child support is calculated simply by referring to the Child Support Guidelines tables and looking up the amount payable at the payor's level of income. The issues in Varga involve two exceptions to this general rule which allow the court to pick an amount of child support different than what the Guidelines tables require...
1) Under s. 5 of the Guidelines, the court can order a step-parent to pay a different amount of support if there is someone else, like another biological parent, who also has a responsibility to pay for the kids. As long as the other parent is actually paying child support, the court will usually treat the step-parent's obligation as a kind of "top up" to the biological parent's obligation, and the step-parent is rarely required to pay the full table amount of child support.
2) Under s. 9 of the Guidelines, the court can order a parent to pay a different amount of support if the parents share the children's time equally or near-equally. Although there are different ways of calculating how much child support should be paid, in general the court will make the payor pay the full table amount minus the full table amount the recipient would pay; this is called the "set off" approach.
In Varga, the court decided that the set off approach for the one child of the parties' relationship wouldn't do because it would result in too great a difference in the standard of living in the child's two homes, and too great a decline from the standard of living the child enjoyed when the parties' were still together. The court ordered the husband to child support of $650 per month, a bit less than the husband's child support table obligation of $755 and a lot more than the set off amount of $376.
With respect to the other two children, the court described the task required by s. 5 of the Guidelines: the court must consider the legal duties of the biological parent and quantify the amount of support the parent should pay, and the amount of the biological parent's child support obligation should presumptively be the full amount owing under the child support tables. The problem, however, was that the child had left the wife to live full time with the father about a year and a half after the husband and wife separated. The court decided that the husband would have no child support obligation from the date the child began to live with the father, however, he would hate to pay arrears of child support accumulating between the date of separation and the date the child went to live with the father.
This case involves two tricky questions about child support: how child support should be calculated when custody is shared; and, how a step-parent's child support should be calculated when someone else also has a responsibility to pay child support. Normally, child support is calculated simply by referring to the Child Support Guidelines tables and looking up the amount payable at the payor's level of income. The issues in Varga involve two exceptions to this general rule which allow the court to pick an amount of child support different than what the Guidelines tables require...
1) Under s. 5 of the Guidelines, the court can order a step-parent to pay a different amount of support if there is someone else, like another biological parent, who also has a responsibility to pay for the kids. As long as the other parent is actually paying child support, the court will usually treat the step-parent's obligation as a kind of "top up" to the biological parent's obligation, and the step-parent is rarely required to pay the full table amount of child support.
2) Under s. 9 of the Guidelines, the court can order a parent to pay a different amount of support if the parents share the children's time equally or near-equally. Although there are different ways of calculating how much child support should be paid, in general the court will make the payor pay the full table amount minus the full table amount the recipient would pay; this is called the "set off" approach.
In Varga, the court decided that the set off approach for the one child of the parties' relationship wouldn't do because it would result in too great a difference in the standard of living in the child's two homes, and too great a decline from the standard of living the child enjoyed when the parties' were still together. The court ordered the husband to child support of $650 per month, a bit less than the husband's child support table obligation of $755 and a lot more than the set off amount of $376.
With respect to the other two children, the court described the task required by s. 5 of the Guidelines: the court must consider the legal duties of the biological parent and quantify the amount of support the parent should pay, and the amount of the biological parent's child support obligation should presumptively be the full amount owing under the child support tables. The problem, however, was that the child had left the wife to live full time with the father about a year and a half after the husband and wife separated. The court decided that the husband would have no child support obligation from the date the child began to live with the father, however, he would hate to pay arrears of child support accumulating between the date of separation and the date the child went to live with the father.
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