New Resources for the New Rules: Update

Additional links and documents for download have been posted in New Rules 101 page of my website. The new papers are:

• Commencing Proceedings: Discovery and Disclosure and
• Desk Orders: Process and Procedure
  

Proving Agreements Made at JCCs

Judicial Case Conferences in the Supreme Court are held on a confidential, in camera and off-the-record basis so that the parties can more effectively explore settlement options, without worrying that they'll be held to a settlement proposal later on. This system usually works quite well, but what happens if people disagree on the terms of an agreement reached at a JCC? How do you prove the terms of an agreement reached at an off-the-record conference?

Normally, the court clerk records the terms of any agreements reached or orders made at a JCC. These are printed out and signed by the parties (or their lawyers) and the judge or master who heard the JCC. The first step to avoiding confusion later on is to make sure that the clerk's record is clear and accurate. If you see an error or an ambiguity, ask to have the record clarified before you leave the JCC. No one will complain, as long as you're being reasonable and not trying to re-argue a point.

If you discover an error or an ambiguity later, and the other side doesn't agree with your recollection of the JCC, you'll have to listen to the tape of the proceedings at the JCC. However, because JCCs are confidential, you don't have the automatic right to listen to the tape of the JCC the way you'd be able to listen to the tape of other court hearings, like proceedings in chambers, and you'll have to make an application for permission to listen to the tape and have a transcript made.

If the transcript backs up your recollection, the other side really ought to agree and that should be the end of it. If not, you'll have to make a second application for an order on the terms of the agreement reached at the JCC, using the transcript of the JCC to support your application.

Child Support and the Income of Payors

G.H. from Vancouver sent me an email with a question that has an interesting answer:

"I understand the application of the child support guidelines and these have been built into my divorce order. I do not, however, understand the logic of having the formula based only on the payor income and number of children, and not the payee's income. ... My ex and I make about the same income, we split assets [and] we have joint custody ... yet her income is irrelevant to the size of my payment. I just can't see the logic of that and in situations like ours, it seems extremely inequitable."

To understand where the Child Support Guidelines are coming from, you have to understand how child support was calculated before the Guidelines came into force in 1997.

Before the Guidelines, the amount of child support paid was based on the children's needs, the amount of money necessary to meet their basic living expenses, and on the parents' means, the amount of disposable income available to the parents to meet those needs. This resulted in a budgeting exercise that was often expensive, always acrimonious and sometimes capricious.

The Child Support Guidelines were intended to address these problems, and they say as much at s. 1:

The objectives of these Guidelines are:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

The Guidelines try to achieve these goals by establishing a scheme for the determination of child support which is mandatory throughout Canada. Most importantly, the Guidelines set out a series of tables for each province which say how much support should be paid based on only two factors: the number of children support is being paid for, and the income of the person paying support.

The choice of these factors and the amounts in the child support tables are, to some extent, arbitrary. Certainly other factors could have been picked and different figures chosen; the Guidelines could equally have determined support using a some sort of calculation rather than tables. It isn't particularly obvious to me, however, that any other arrangement would be better than what we wound up with.

Basing the amount of child support on figures set out in tables stops people from engaging in bitter and costly debates about need and means. The tables amounts are presumed to be a complete indemnification of the payor's obligation, and in addition to preventing arguments about that, they prevent arguments about how the recipient has chosen to spend the support received. Indexing the tables to the payor's income means that only one person's income needs to be analyzed and eliminates arguments about the adequacy of the recipient's contributions to the costs of the children's upkeep.

Whether these are good and appropriate objects and values is a better subject for politicians and social policy theorists. The end result, I think, has been a fairer, more predictable and less expensive means of determining child support for most, but certainly not all, parents, and I would be just as happy with any other system of child support which achieved the same effect.

In fairness, there are occasions when the rigid application of the Guidelines works an injustice and relief is available to remedy that in the "undue hardship" provisions of s. 10 of the Guidelines. As well, there are a number of circumstances in which the recipient's income is a factor applied in the calculation of support, including where:

1. the parents have "shared custody" as defined by s. 9;
2. custody of the children is "split," under s. 8;
3. the child is over the age of majority, under s. 3(2)(b);
   
4. the payor's income is over $150,000 per year, under s. 4; and,
5. the parents are required to the child's special expenses pursuant to s. 7.

At the end of the day, the arbitrariness of the Guidelines seems to me to work well for most of the people most of the time, although it's entirely possible that another system would work better. The Department of Justice likely has some of the background and research papers for the Guidelines available, and there will be Hansard transcripts for any Parliament discussions on the subject.

New Resources for the New Rules

The complete, official text of the new Supreme Court Family Rules, including the new forms prescribed by those rules is available on the website of the Queen's Printer. Bookmark this link!

I have posted a number of my papers on the new rules for free public download on my own website, in the New Rules 101 page. Topics include:

• Index and Concordance: Rules Commonly Referenced - An alphabetized index of the new rules to the current Supreme Court Rules of Court.
• Timelines, Deadlines and Limitation Periods - Like it sounds, a digest of the new rules' timelines and deadlines.
• Commencing Proceedings: Process and Procedure - A review of the processes for commencing proceedings by Notice of Family Claim and Petition and the rules about personal service and ordinary service.
• Chambers Proceedings: Process and Procedure - A digest of the process for all chambers applications, including applications for interim orders, final orders by summary trial, variation proceedings and petition proceedings.
• Practice Tips: Tidbits, Oddities and Miscellanea - A summary of some of the more interesting quirks of the new rules from a lawyer's perspective.
  

Journal Publishes List of Stepfamily Self-Help Books

The December 2009 edition of Family Relations, an organ of the National Council on Family Relations, contains a very interesting article in which the authors evaluate the usefulness of 64 self-help books for stepfamilies based on readability, content, references to the scientific literature, the qualifications of the author and comprehensiveness.

Without getting into the details of the article, the 13 books which made it into the "strongly recommended" list were, in alphabetical order:

1. Boyd, H. The step-parent's survival guide (1998, London, Ward Lock)
2. Fletcher, J.B. A career girl's guide to becoming a step-mom (2007, New York, Harper)
3. Lauer, R.H. & Lauer, J.C. Becoming family: How to build a stepfamily that really works (1999, Minneapolis, Augsburg)
4. Lutz, E. The complete idiot's guide to stepparenting (1998, New York, Alpha)
5. Mulford, P.G. Keys to successful stepmothering (1996, Hauppauge, Barron's)
6. Newman, M. Stepfamily realities: How to overcome difficulties and have a happy family (1993, Oakland, New Harbinger)
7. Norwood, P.K. & Wingender, T. The enlightened stepmother (1999, New York, Avon)
8. O'Connor, A. The truth about stepfamilies (2004, New York, Marlowe)
9. Pickhardt, C.E. Keys to successful stepfathering (1997, Hauppauge, Barron's)
10. Rosenblum, G. Stepfamilies: Making it great (2000, Minneapolis, Creative Publishing)
11. Thomas, S. Two happy homes (2005, Longmont, Spingboard Publications)
12. Tufnell, C. & Tufnell, T. Every step counts (2007, Oxford, Lion)
13. Visher, E.B. & Visher, J.S. How to win as a stepfamily (1991, New York, Routledge)

"An Evaluation of the Remarriage and Stepfamily Self-Help Literature" was written by Marilyn Coleman and Lynette Nickleberry, both of the University of Missouri.

Parenting Coordinators Group Expands Roster

The BC Parenting Coordinators Roster Society has updated its website, and, along with it, posted an expanded roster of parenting coordinators, bringing the total number of members to 29.

The Society, first established as an unincorporated association in 2007, has finally been incorporated as a non-profit society under the provincial Society Act. The directors of the Society will shortly be establishing a variety of committees to promote parenting coordination in British Columbia, and will be hosting the Society's first Annual General Meeting in the late fall of 2010 or early spring of 2011.

BC Announces Domestic Violence Policy

On Monday the provincial Solicitor General's office announced the government's policy response to the coroner's inquest into the 2007 deaths of Yong Sun Park, her son Christian Lee and her parents Kum Lea Chun and Moon Kyu Park at the hands of Park's husband, Peter Lee. The deaths sparked broad public concern into handling of domestic violence cases by the government and police.

According to the press release issued by the Ministry of Public Safety and Solicitor General, the government will:

• establish a uniform policy on the investigation of domestic violence complaints, and flag such complaints so that all officials involved are aware the case involves an allegation of domestic violence;
  
• establish a specialized domestic violence unit in the capital district, where the murders took place;
• review deaths relating to domestic violence between 1995 and 2009; and,
• establish a standard set of bail conditions to be requested when an accused is identified as high risk.