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

Ex Parte Orders… This has nothing to do with partying with your ex…

Except, perhaps, in the case that you are trying to get an injunction to prevent your ex from talking about your potentially embarrassing behavior – like in the case of Party Av. Party B in which Party A successfully obtained an ex parte order preventing his former partner from disclosing the details of their affair, as follows:

The appellant is a married businessman. The respondent is an unmarried businesswoman. The two engaged in an affair which was ultimately terminated at the instance of the appellant. During the course of the affair, the parties engaged in activities, the details of which the appellant would prefer to keep undisclosed.

After the affair ended, the respondent made public disclosure of many aspects of the parties’ activities. The appellant commenced an action against the respondent alleging breach of confidence and breach of the Privacy Act, R.S.B.C. 1996, c. 373, by the respondent. He sought an ex parte order to restrain the respondent from further disclosure, and on May 9, 2011, his application was heard, in camera, and an order was granted against the respondent by a justice of the Supreme Court (the “First Justice”) including the following terms:

1. This Order orders you, among other things, to cease and desist from publishing or disclosing the Private Information as defined below

2. You are at liberty to apply to this Court to set aside or vary this Order upon giving two (2) clear day’s notice to the Plaintiff’s solicitor of your intention to do so.

3. If you disobey this Order you may be guilty of contempt of Court and may be sent to prison, or fined, or both.

THIS COURT ORDERS that:

4. The Defendant, by herself or by her employee, agents, or otherwise, and any other person with knowledge of the terms of this Order, be and is hereby restrained from disseminating, publishing, or otherwise disclosing any private information about the Plaintiff, his sexual practices, or anything that would connect him to having had a sexual relationship with the Defendant (the “Private Information”), until the trial or other disposition of this proceeding or until further Order of this Honourable Court…

Ex Parte (Latin meaning “from (by or for) one party”) are orders obtained on the application of just one party in a court case, without notification to the other party/parties.

In British Columbia, we have dropped the Latin and now call them “orders without notice” in the rules of court.

Applications without notice should only be brought in extraordinary and emergent circumstances and the party bringing the application must explain to the court why it is not possible to provide notice to the other party. The duration of the order is generally to be made for a period sufficient to give the other party notice of the order and schedule a full hearing.

The party bringing the application without notice must also make full disclosure of all of the relevant and material facts relating to the order they are seeking (both for and against their case). Failing to make such frank disclosure may result in the order being set aside or an order of special costs being awarded against the person obtaining the order (for example in this case). Further, failure to make full and frank disclosure can tarnish your credibility in future proceedings before the court. For example, in one case, the court stated:

This evidence of the father lacks believability in this regard as does his justification for obtaining the second ex parte order.

In the Supreme Court of British Columbia orders without notice can be brought pursuant to Supreme Court Family Rule 12-4(3).

Supreme Court Family Rule 10-9(8) provides that an order without notice can be varied or set aside on the application of the other party to the litigation.

In the Provincial Court of British Columbia an order without notice can be made under Rule 20(3) of the Provincial Court (Family) Rules. There are other rules in the Provincial Court Family Rules that give Judges discretion in extraordinary circumstances: Rule 5(8) allows for Provincial Court Judges to make court orders without following regular Registry procedures and Rule 12(2) provides for a Provincial Court Judge to dispense with service requirements.

In family law cases orders without notice are often made for three purposes: 1) personal protection and protection of children (including preventing children from being relocated without consent); 2) protection of property; and 3) exclusive use of property.

A review of 2013 decisions in British Columbia shows that recent ex parte orders without notice have also been granted for a number of other reasons, for example:

  • spousal support (paragraph 20 – order made in 2008);
  • custody and access (paragraph 3); and
  • access to records (paragraph 14 – order made earlier than 2009).

    Divorce Cartoon

  • Family Court: go and watch

    Almost every client I have who has not been to court before – and is considering bringing a court application or starting a court action – wants to know what is going to happen during their time in the courthouse.

    When I am asked the question “what is court going to be like” my usual answer, after giving a general explanation of the court process, is: “go and check it out to see first hand…admission is free”. The public can watch proceedings in the British Columbia Supreme Court and British Columbia Provincial Court on most weekdays.

    In British Columbia there are certain proceedings that are closed that are closed to the public (i.e. you cannot watch them without permission from the court). For example, you will not be able to watch Judicial Case Conferences and cases that have publicity bans. The majority of cases, however, are open to the public.

    If you would like to go and watch court, to get an idea of what it is all about, you can find the Court Registry in your region online.

    If there is a specific case you want to watch, a specific Justice, Judge or Master you would like to see or a specific type of proceeding that you would like to learn about, you can find the court room and time by looking at the Hearing Lists online.

    Often the most useful proceedings to watch, if you are involved in a family law case, are family law chambers. During family law chambers you will usually be able to see a number of different types of issues being dealt with (for example child support, spousal support and parenting time) in one morning. You will also get the opportunity to see a number of different lawyers arguing different cases.


    Avoid not knowing what is going on… go and spend a morning at court

    Special Costs: spouses behaving badly

    Special costs can be awarded pursuant to Rule 16-1(1)(b) of the Supreme Court Family Rules.

    They are awarded in rare cases where conduct by a party during a court proceeding has been “reprehensible.” Special costs are above regular costs, or double costs.

    As set out in Oldaker v. The Owners, Strata Plan VR 1008, 2010 BCCA 241:

    The well known formulation of the test for special costs set out by Lambert J.A. in Garcia v. Crestwood Forest Industries Ltd. … at para. 17.

    [T]he single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”. As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms in its conduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

    As this passage makes clear, the primary descriptor of the standard for a special costs award is “reprehensible”. The other terminology: “scandalous or outrageous”, “reproof or rebuke”, “reprehensible or unconsciounable” simply indicates that “reprehensible” is to be interpreted broadly ….

    An applicaiton for special costs was recently dealt with in a family law case: Oliver v. Oliver 2012 BCSC 2102. In that case, Madam Justice Fenlon commented:

    An award of special costs is discretionary. Such an award is based on a party’s conduct in the proceedings, and I emphasize that. It does not relate to Mr. Oliver’s conduct during the marriage or leading to the breakdown of the marriage, or in his relationship with Mrs. Oliver.

    It is important to note that Justice Fenlon specifically comments that conduct prior to the court proceedings (litigation) is not relevant to an award of special costs if your spouse was, in your opinion, reprehensible, scandalous or outrageous during the time you were married. In the Oliver case, special costs were not awarded.

    I thought it would be interesting to look at some court decisions where special costs have been awarded in family law. Some examples are:

  • “At the trial, the issues turned on the credibility of the parties. Kelleher J. found that the defendant’s claims – that the plaintiff had taken some Gucci watches, several gold bars and the wedding jewellery from the parties’ safety deposit box and that the parties separated on a date different than that claimed by the plaintiff – were unbelievable.” Kooner v. Kooner;
  • The respondent husband failed to disclose assets, Cunha v. da Cunha;
  • “The defendant has pursued a hopeless claim which was bound to fail. He has not pursued the several appeals he filed but has returned to this Court on the same issue seeking to have a different judge over turn what has clearly been determined by a previous judge.” Muller v. Muller;
  • the defendant, inter alia, attempted to mislead the court at trial regarding his income, refused to swear an oath upon giving testimony, disobeyed court orders, and refused to answer questions under oath on examination for discovery. Bains v. Bains>;
  • “I regret to have to say in such circumstances that, on the whole, the defendants and those members of their family who gave testimony in support of their positions upon the material issues, in my view, gave such testimony in a deliberate attempt to mislead the court. In particular, I am satisfied they were engaged in a scheme, however misguided, to defeat the claims of the plaintiff in relation to her interest in the matrimonial home.” Young v. Young.

    Deliberate attempts to mislead the court will result in special costs… which reminds me of the 1997 divorce movie “Liar Liar”

  • Family Law Act: spouse defined

    Much has been written about the new Family Law Act‘s definition of the term spouse. Lots of people ask me about the term as well. How long do you have to live together to be a spouse? When does a relationship begin? When does a relationship end?

    Here is what the statute has to say:

    Spouses and relationships between spouses

    3 (1) A person is a spouse for the purposes of this Act if the person

    (a) is married to another person, or
    (b) has lived with another person in a marriage-like relationship, and
    (i) has done so for a continuous period of at least 2 years, or
    (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

    (2) A spouse includes a former spouse.

    (3) A relationship between spouses begins on the earlier of the following:
    (a) the date on which they began to live together in a marriage-like relationship;
    (b) the date of their marriage.

    (4) For the purposes of this Act,
    (a) spouses may be separated despite continuing to live in the same residence, and
    (b) the court may consider, as evidence of separation,
    (i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
    (ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

    Basically if you have lived with someone in a “marriage-like relationship” for a continuous period of two years you are a spouse of that person.

    No wedding, no problem... you still have an equal opportunity to annoy your spouse... Photo Credit: C.P.Storm

    No wedding, no problem… you still have an equal opportunity to annoy your spouse…
    Photo Credit: C.P.Storm

    Additionally, if you have a child with a person (but have not lived together for two years) you are a spouse except for the purposes of property division and pension division.

    What is a marriage like relationship? There is no exact definition. However, if you are anything more than platonic roommates you should consider getting legal advice about the status of your relationship – there have been many court cases looking at different factors of couple’s living arrangements to try an determine if they are “marriage like”.

    Provincial Court of British Columbia: jurisdiction over a pet dog

    A recent Provincial Court of British Columbia decision made a ruling about a pet dog.

    While courts have been reluctant to make custody or access orders in regard to family pets, in the decision of Custodio v. Pucci, the Honourable Judge J. Challenger found that the court had jurisdiction to make an order in regard to family pets (if they are treated as property):

    The court has jurisdiction under s. 3(1)(b) of the Act to order the return of a dog as a dog is considered a piece of property.  In Watson v. Hayward, a decision of my sister Judge Dhillon, rendered July 2, 2002 reported at 2002 BCPC 259 (CanLII), 2002 BCPC 259, she canvassed the legal principles applicable in such a matter.

    On such an application the court must consider whether there is an issue to be tried, and I am satisfied on Ms. Custodio’s evidence that there is an issue to be tried, whether she has demonstrated a strong prima facie case and based on the documents and her evidence, if that was accepted by the court, indeed she has a strong prima facie case and likely a strong case at trial.  The third issue is whether irreparable harm will result not compensable by damages at common law if the interim order is not granted and, finally, where the balance of convenience lies.

    Judge Dhillon distinguished cases involving pets from cases involving inanimate pieces of property.  That case involved a breeder who had reclaimed a dog as a result of what was alleged to be neglect of the dog by the person who had purchased it from the breeder which distinguishes the case on its facts.

    The “Act” that is being referred to above is the Small Claims Act.  Section 3(1)(b) of that Act gives the Provincial Court of British Columbia:

    3  (1) The Provincial Court has jurisdiction in a claim for

    (a) debt or damages,

    (b) recovery of personal property,

    (c) specific performance of an agreement relating to personal property or services, or

    (d) relief from opposing claims to personal property

    if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs.

    (2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution.

    So, if your family pet is worth $25,000.00 or less, you can bring a claim in the Provincial Court of British Columbia (see Small Claims BC as a starting point).  If your pet is worth more than $25,000.00 the Supreme Court of British Columbia would be the court to hear your case (unless you decide to abandon the portion of your claim over $25,000.00, in which case you could still proceed in the Provincial Court of British Columbia).

    “If you are keeping a white lion cub (apparently $138,000.00) as a pet in British Columbia you are going to have some other legal issues arise …”

    Facebook: Is posting photographs of your children on Facebook a parenting concern?

    I was reading through recent British Columbia Supreme Court  judgments and I came across the case of Bain v. Bain.

    In this decision, the Honorable Mr. Justice Crawford addressed a mother’s concern about her former husband posting pictures of their daughters on Facebook.  Mr. Justice Crawford stated at paragraph 16:

     As well, there have been concerns about Mr. Bain’s parenting.

    He has made available on the internet by way of Facebook, pictures of the children in their very early years. There is a danger of publishing such pictures in this day and age, which should be apparent to any parent, let alone the father of two small daughters. Therefore, there shall be this order:

    Mr. Bain shall forthwith remove from Facebook, and any other public medium, any and all pictures and references, comments or written words regarding the children.

    When I was reading this decision I noted that:

    • We do not have an idea or description of the nature of the pictures posted on Facebook;
    • Mr. Bain did not attend the hearing; and
    • Justice Crawford did indicate some problems with Ms. Bain’s affidavit evidence.

    I mention the above points because they indicate that there might have been another side to the story (no one was there to advocate on behalf of Mr. Bain or put his point of view forward).

    It is also interesting that the reasons for judgment set out a series of incidents indicating poor judgment on the part of Mr. Bain (not just the Facebook pictures) – can the [lack of] judgment used in posting the  of the Facebook pictures be inferred from the rest of the  communication/conduct on the part of Mr. Bain that is described?

    So – is posting pictures of children on Facebook a parenting concern?

    In some circumstances I think it is appropriate to post family pictures on Facebook.

    I have posted pictures of other people`s kids in my Facebook albums (for example at my wedding) – should I take these down?

    Many of my  friends and relatives have children – they are wonderful parents and frequent Facebook “kid-pic” posters.  Posting pictures on Facebook seems to be commonly used instead of mailing out school pictures or family portraits – how else would we get to see our nieces and nephews across the country celebrate their Birthday (maybe the event could be broadcast to the extended family over Skype…?).

    Obviously the decisions to post pictures of children on Facebook/the internet are an individual decision for parents.  For example, one of my good friends who had a baby over the Christmas break e-mailed out a newborn picture to our group of friends and said “Dad says only clothed pics of Baby on the net”.

    My general thought on this is as follows:

    • Adjust your privacy settings to make sure that only people who are close friends/family can see pictures of your kids;
    • If you are not able to adjust your privacy settings – remove the photographs of your kids from Facebook (do you really want random strangers seeing your photos?);
    • Avoid posting pictures that will cause the children personal humiliation to them later in life (when the are a teenager) and remember:
    George Takei

    “This picture was copied from the Facebook page of someone I don`t know, George Takei, without his permission or knowledge“

    Do you think it is appropriate to post pictures of children on Facebook…?  If so, what are the restrictions and limitations you use when deciding what to post?