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

Welcome Krystle Gill!

Cassels Murray is very pleased to announce that Krystle Gill joined our firm on April 1, 2015.

Krystle Gill Cassels Murray

Krystle has strong negotiation skills and experience, as well as trial experience at both the Provincial and Supreme Court levels in British Columbia.

Krystle graduated from the University of British Columbia in 2009 where she was a Director of the Law Students’ Society and President of the International Law Students’ Society. She has been a member of the Executive Committee for the Canadian Bar Association – BC Branch for 3 years, the Chair of the Women Lawyers’ Forum – Vancouver Island, and has a strong connection to the legal community through her local involvement with the Victoria Bar Association.

We are fortunate to have Krystle as part of our team. Krystle will be practicing in the areas of family and estates law.

The Cost of Divorce in Canada 2015: five tips to reduce your costs

My very smart friend from law school, Anna Lund (LLB, LLM, PHD Candidate) tweeted an interesting article by Penelope Graham: “The Cost of Love in Canada 2015: $50,339.21”.

The article breaks down the cost of a romance in Canada: one year of dating, one year of engagement, a wedding and a honeymoon = $50,339.21.

This statistic is much higher than I expected. Naturally, the first thing I thought about is: what is the cost of divorce in Canada?

There are many expenses related to divorce and separation in Canada. Just some examples of the costs include: court fees, legal fees, fees to obtain documents, expert reports, specialists (such as a child specialist), counselling fees… and more recently the fees related to a divorce party (yes apparently there is Wikipedia page about this!).

Given the reported cost of an average romance, I can safely say that, in my experience, the cost of an average divorce is LESS expensive than the dating/marriage phase (although generally much less enjoyable!).

That being said, family law legal matters are still expenses (often prohibitively so).

From my practice, these are some tips you can do on your own to help reduce your costs in a separation/divorce situation:

  • Do the heavy lifting on the front end. Consider a cohabitation agreement, document things in writing (i.e. who is contributing what funds to family assets, how are family finances going to be dealt with and who is responsible for what if the relationship breaks down – in a form that is legally binding);
  • Gather information on your own. Of course, it is important that the information you obtain is from reliable and free sources (for example: JP Boyd’s family law blog, CanLII, Supreme Court of British Columbia’s website, Provincial Court of British Columbia website, Legal Services Society website). There is lots of information on the internet about separation and divorce and certainly not all of it is good. If you can get accurate and reliable information you will be in a better position to consider your options and ask your legal counsel strategic questions. I often tell my clients that if they cannot fall asleep because they are worrying about their family law case reading the Spousal Support Advisory Guidelines or the Child Support Guidelines is a pretty sure bet for sleep within a half hour. Being prepared and informed will empower you to feel better about your decisions and also reduce the cost of legal fees;
  • Consider some alternatives to court. (mediation, arbitration, collaborative family law). If both you and your former spouse can be reasonable and have appropriate professionals to help you deal with the contentious issues you can hopefully avoid a contested litigation;
  • Pick your battles. Don’t argue about things that are not cost effective. For example, is it worth paying a lawyer their hourly ($200.00 – $500.00+) rate to argue about kitchen utensils and Ikea furniture which is worth less than the cost of the lawyer’s time?;
  • Take advantage of free resources and options. For example, the Parenting After Separation Course, family justice counsellors, and the Family Maintenance Enforcement Program; and
  • Organize your documents. There are many necessary documents that will need to be exchanged in a family law proceeding. You can obtain and organize these on your own without the cost of your lawyer – your lawyer can review them once they are organized in a more efficient and cost effective way. I recall once when I first started practicing a lovely client brought three grocery bags of crumpled and coffee stained documents into my office for organization! I suggested that it would be much more cost effective for the client to organize them at home or to have my assistant help out for a few hours at a much lower rate. You can start filling out your financial statement before you visit with your lawyer. You can also order tax documents from the Canada Revenue Agency online and your own marriage certificate.

    Of course sometimes the divorce process is so stressful it is not realistic to take on additional work beyond getting through the day to day, parenting children and a busy work schedule – if that is the case, ask your legal counsel if there is a paralegal or assistant who can help you with some of these tasks at a lower hourly rate.

    The cost effectiveness of hiring lawyers to divide stuffies is a losing proposition...

    The cost effectiveness of hiring lawyers to divide stuffies is a losing proposition…

  • 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

    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 …”