A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Family Law Act Fact Sheet

On Tuesday, I presented at the eWomen Network Vancouver Island Accelerated Networking Dinner.

The presentation I gave was a summary of changes that are coming with the new Family Law Act.

Carly and I at the eWomenNetwork dinner on August 14, 2012

According to the explanitory notes to the Family Law Act, it will do the following  (bold portion taken from the explanatory note to the Family Law Act – italics portion are Christine’s commentary):

  • Promote family dispute resolution to resolve disputes;
  •  More emphasis placed on mediation, collaborative law, arbitration, parenting coordinators and out of court dispute resolution;
  • Clarify when and how agreements may be set aside;
  •  The court will only be able change the terms of a written agreement if: one of the parties failed to disclose significant property or debts, one person took advantage of the other’s vulnerability, one spouse did not understand the nature and consequences of the agreement, there is a common law reason the contract would be voidable;
  • The test for determining if an agreement is valid changes from “unfair” to “significantly unfair”;
  • Establish a comprehensive scheme to determine a child’s legal parent, including in situations where technology has been used to assist reproduction;
  • Ensure that the best interests of the child are the only consideration when resolving parenting disputes, and add into the consideration of the best interests of the child any history of family violence and, unless inappropriate, the child’s views;
  • There is no presumption of equal parenting time;
  • Emphasize responsibilities to children and promote cooperation by eliminating divisive terms, replacing “custody” and “access” with “guardianship”, “parental responsibilities” and “contact with a child”;
  • Establish a clear framework to determine whether a parent may relocate with a child;
  • Extend rights and duties respecting property division to unmarried persons who qualify as spouses, and modify the property division framework to meet recommendations from the British Columbia Law Institute respecting pension division;
  • Spouses will have access to the property division provisions of the Family Law Act.  A spouse is a person who has lived in a marriage-like relationship for two years or is legally married.
  • Align spousal support more closely with the Divorce Act (Canada) and eliminate parental support;
  • The court may order that spousal support (and child support) may continue after the person who pays support dies.
  • Increase the range of remedies and consequences for non-compliance with agreements and orders;
  • Replace civil restraining orders with orders to protect safety and orders to manage behaviours that are problematic but do not present a risk of family violence;
  • Amend the Commercial Arbitration Act to change the title and add provisions unique to arbitrations respecting family law disputes;

There are many, many, many more details and changes to be aware of –  it is very important to consult with a lawyer for legal advice.   The extended version of my presentation goes into more of these details.  I will be interested to see, after the legislation comes into force, if it does all of things it promises to do!

Contempt of Court: what is it and how to avoid it?

At the National Family Law Conference last month, the Honourable Madame Justice Elizabeth Jollimore of the Supreme Court of Nova Scotia  and Sharon Kravetsky  gave an excellent presentation entitled: “Contempt: Substantive Law and Strategic Considerations.”    This presentation got me thinking about contempt of court in a family law context – people have asked me if they can have their spouse (or former spouse) found in contempt of court – without knowing exactly what it involves.

What is civil contempt of court?

Black’s Law Dictionary defines civil contempt as: “The failure to obey a court order that was issued for another party’s benefit.  A civil contempt proceeding is coercive or remidial in nature.  The usual sancation is to confirm the contemner until he or she complies with the court order.”

The Saskatchewan family law case of Brown v. Bezanson explains what contempt of court is used for and what needs to be met to make a finding of contempt:

A proceeding for civil contempt is available to redress a private wrong by forcing compliance with an order for the benefit of the party in whose favor the order was made.  Sanctions for civil contempt are thus mainly coercive in nature.  Their aim is to force complaince with the order.  They may also be punative where the circumstances warrant it.

The burden of proof in contempt applicaitons is beyond a reasonable doubt and rests with a party alleging the contempt.

In civil contempt proceedings the following evidence must be proven beyond a reasonable doubt:

  1. The terms of the order must be clear and unambiguous;
  2. The contemner must have knowledge of the terms of the order;
  3. The breach of the terms of the order;
  4. The appropriate mens rea must be present.

JP Boyd’s BC Family Law Resource provides a description of the procedural process to make an application to seek a finding that someone is in contempt of court in a family law proceeding.

What are the penalties for being found in civil contempt?

In terms of penalties for contempt, Sharon Kravetsky states in her paper “Contempt: Compliance, Restoration and Punishment” at page 21:

Traditional responses to contempt are fines or imprisionment.  These responses may be the reason contempt is such an unsatisfactory remedy in family law.  Stretching already strained finances or incarcerating a care-giver or access parent does little to serve the best interest of a child.  In contempt cases which involve children, there is always concern about the best interests.  More imaginative responses may be necessary.

Penalties for contempt of court in family law cases have included (but are not limited to): incarceration, terms of incarceration, fines, court ordered costs, suspension of child support payments, make up access visits, change in primary care of a child, and changes in decision making authority for a child.

How can I avoid being found in contempt of court?

Generally being in contempt of court is something you bring upon yourself by account of your own behaviour (by doing or failing to do something).  Some common sense tips for not being found in contempt include:

1) Do not act like my Cousin Vinnie:

http://www.youtube.com/watch?v=pFOnB9ODRkA

2) Follow court orders;

3) If you are unclear about a court order, seek clarification as soon as possible;

4) If you are unable to comply with a court order, seek to have the court order changed by the court so you can comply with the terms of the order; and

5) Consult a lawyer with any quesitons you have about a court order.