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

Family Law: access for grandparents

Are grandparents able to get court orders for access to their grandchildren?

The answer is yes.  In British Columbia, third parties (for example grandparents) can get court ordered access to children.

Section 35 of the Family Relations Act provides that grandparents of a child  may apply to the court to exercise custody over a child or have access to a child.

Seciton 16 of the Divorce Act provides that the court can make an order recpecting custody or access if an application is made by a spouse, or any other person.

The new Family Law Act provides in Section 59 that the court may grant contact to any person who is not a guardian, including grandparents.

The British Columbia courts have set out some considerations  in case law, for example Chapman v. Chapman to guide an analysis of what is in a child’s best interest when assessing third party access claims:

  • The court should be reluctant to interfere with the custodial parent’s decision on access and should do so only if it is satisfied that it is in the child’s best interest to do so;
  • It is not in the child’s best interest to be exposed to a real conflict between a custodial parent and a third party (however the court should be aware of cases where parents may be arguing there is a conflict or potential conflict to beat an access application that has merit).

It is the onus of the party seeking access to a child to show that the access they are proposing is in the best interest of the child.  A court may also consider what the child thinks about access if they are old enough.

(Meet the Fockers – different grandparents = different parenting styles ~ NOTE: safe for work)

If you are a grandparent seeking acecss to your grandchild, there are some useful resources online that you can consult for free, including:

Interestingly, the summary of case law by the Department of Justice looks at how the courts have treated access claims by grandparents differently in circumstances where the families are “intact” and “not intact”.  The Department of Justice articles summarizes their review:

The case law above seems to suggest that the courts may use their jurisdiction to maintain existing relationships between grandparents and grandchildren when the acrimony between the parents and grandparents is not so strong as to place the children in an untenable position.  However, the courts are unlikely to create or establish relationships when none previously existed, against the wishes of a parent.

Family Law: Debt or Loan?

At the National Family Law Conference Stacie R. Glazman, LL.M., C.S., CBV, presented a paper entitled “Thanks for the Money, Mom and Dad.  Do I have to Pay You Back?”

Ms. Glazman is an excellent speaker (and author) so the topics stuck with me.  Her paper, and presentation, addressed an issue that can become contentious: if a parent advances money to their married child:

  • is the money a gift?
  • is the money a loan?
  • is the money a gift to only their child (and not the spouse)?
  • is the money a loan to only their child (and not the spouse)?

Often becasue these gifts/loans are given in the context of family relationships, they are not documented and recorded with the same level of detail that business transactions are.  When parties separate, and money has to be separated, and disputes often arise as to who gets the benefit of the money from mom and dad, or who has to pay the money back to mom and dad.

In 2007 the Supreme Court of Canada released a decision dealing with the loan vs. gift issue, in an estate context.  In the Pecore v. Pecore decision, the court found that the presupmtion of advancement is not applicable to transfers between parents and adult independent children.  Previously, the presumption of advancement had applied to property transfers between parents and independent adult children where no consideration was given.  The presumption of advancement meaning: a presumption that the transfer was intended as a gift.  Baesd on the Pecore decision, the presumption is that of a resulting trust (i.e. a “loan”).

Ms. Glazman summarizes the test as follows at page 8 of her paper:

  1. Determine if the presumption of resulting trust applies because the transfer is gratuitous and the recipient is obliged to return it;
  2. The onus is on the person claiming “gift” to show that a gift was intended;
  3. Look to the evidence as to the transferor’s actual intention to see if it is sufficient to rebut the presumption on a balance of probabilities.
How does this apply to family law?

Many courts across Canada have found that the law in Pecore has been applied to family law cases where there are “gift vs. loan” disputes.  For example, the recent case of T.S. v. M.S. and J.P provides a useful summary of the application of the Pecore decision to family law in British Columbia at paragraph 35, citing the case of Hawley v. Paradis:

29        … The recent cases of Ng2008 BCSC 172 (CanLII), [2008 BCSC 172 ] and Krupa v. Krupa, 2008 BCSC 414 (CanLII), 2008 BCSC 414 [Krupa], have both considered the principles in Pecore within the context of transfers of money or property made by a parent to a child within a dispute over the division of marital property. Ng and Krupa are instructive in this case. In Ng at para. 37, Garson J. held that, according to Pecore, “a presumption of advancement as between parents and children will only arise in cases where the child is a minor”. She further stated that the presumption of a resulting trust had been rebutted in that case. In my view, Mr. Paradis’ contention that Garson J. thought other conclusions could be reached regarding the presumption of advancement is untenable. Rather, it appears clear to me that she was indicating that she was bound to follow the law as set out by the majority in Pecore, as am I. In Krupa, Madam Justice Ross concluded that the presumption of advancement with respect to gratuitous transfers from a parent to a child is limited to transfers involving minor children. She also stated at para. 78, “There is a presumption of resulting trust with respect to gratuitous transfers from a parent to an adult child.” Ross J. further considered D.L.M.2008 NBCA 2 (CanLII), [2008 NBCA 2, 289 D.L.R. (4th) 37] and held that the factors in Locke continue to be relevant to ascertaining intent when considering whether a transfer made by a parent to an adult child is a loan or a gift.

30        Based on the case law presented to me, I conclude:

  1. that the presumption of advancement no longer applies between adult children and their parents;
  2. that as between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;
  3. that the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or a loan;
  4. that the factors considered in Wiens and Locke will assist the court in determining whether the advance was a loan or a gift.

What evidence and factors will the court consider?

The court may consider a number of factors in making the determination if a transfer was a gift or a loan.

The factors set out in the Locke case, are:

  • Whether there are any documents showing that the transfer was a loan;
  • If a manner of repayment is specified;
  • If security is held for the loan;
  • If there are advances to one child and not to others (i.e. if this is a pattern of giving);
  • If there was a demand for payment prior to separation;
  • If there has been some form of repayment; and
  • If there is a likelihood or expectation of repayment.

The evidence in each case will have an important impact on determining if the transfer was a gift or loan.

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.

Divorce: Shouts & Murmers

 The last few weeks have been full of interesting news items about divorce.  Here are a couple to check out:

Nick Downes - Published in the New Yorker January 17, 2000

The New Yorker:

In a recent “Shouts & Murmers” Cora Frazier wrote about divorcing in exchange for working  from home and getting rid of the daily commute.  It is a hillarious read, especially on your daily commute to work (after a morning of bickering with your spouse):
5% of [Americans] surveyed said they would actually be willing to divorce their spouse if that meant they could stop commuting and work from home instead.
Mainstreet.com.

You see, this was the choice the survey offered me, as I understood it: I could continue to take a forty-seven-minute train ride (or a thirty-eight-minute ferry ride) and a twelve-minute subway ride to and from work every day while remaining your wife, or I could work from home and cease to be married to you. I have chosen the latter.

You probably have a few questions, as I did. For example, will this home be our home, where you also live? Given the fact that we will no longer be husband and wife, this is a complication. I asked the surveyor this question, but she had already moved on to “Would you give up manicures if it meant you didn’t have to commute?” (No.)

www.perezhilton.com:

Perez Hilton always posts interesting tidbits about celebrity divorces.  Kim Kardashian’s divorce is proceeding with depositions, and Kris Humprhies is set to testify.  Winnie Cooper is getting a divorce (not from Kevin Arnold) and has given some reasons why.

 Supreme Court of British Columbia:

mentioned  earlier this month, the case of  Aquilini v. Aquilini is proceeding in the Supreme Court of British Columbia.  A decision was published yesterday, penned by the Honourable Madam Justice Stromberg-Stein, on the application of Francesco Aquilini to seal the  court file in his divorce proceedings including, but not limited to, reasons for judgment, court orders, affidavits, and transcripts.

Ms. Aquilini argued that the public interst in having open court proceedings should override the privacy interests of Mr. Aquilini and family.  A leading court decision in this regard is Edmonton Journal v. Alberta, which  states:

In summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.

 In this case, an interim order was granted sealing the file, pending the outcome of a two day application for a permanent sealing order (to be heard in August 2012), to protect personal and financial information fo Mr. Aquilini, that he believes may otherwise be open to competitors and news outlets.

 Let me know if you run across any interesting divorce articles to share!

 

Divorce: how much are the Vancouver Canucks worth?

The answer is – we may never find out.

As reported by Neal Hall in the Vancouver Sun:

Vancouver Canucks owner Francesco Aquilini has filed an application in court to keep the team’s financial information private during his divorce case.

A little background…

Francesco Aquilini is involved in divorce proceedings with his wife, Taliah Aquilini, in a Supreme Court of British Columbia file opened on February 22, 2012.

The Aquilini family has substantial assets, including an ownership interest in the Vancouver Canucks.  The team was valued at $300 million dollars by Forbes (calculated in November 2011).

Of course a valuation in Forbes is not adequate information to rely upon in dividing family assets upon marital breakdown.

What documents and information can I get about family assets in my divorce proceedings?

In divorce proceedings, a spouse is entitled to substantial financial disclosure – far more financial information than an estimate of value from Forbes.

A spouse is entitled to a Financial Statement, in Form F8 – which is a sworn statement setting out the income, assets and liabilities of the the other spouse, along with supporting documentation (such as tax returns and property assessments).

A spouse can also employ the Supreme Court Family Rules to gain more in depth access to information regarding both family assets, and other assets of the spouse.

Some of the methods to get financial information in a divorce proceeding include (but are not limited to):

  • Examinations for discovery;
  • Demands for production of documents (including demanding documents directly from the corporation/ business in which the spouse has an interest);
  • Examination and inspection of documents;
  • Discovery by interrogatories;
  • Examination of witnesses; and
  • Expert reports on financial issues.
You wrote in a previous blog that divorce files are only accessible to specific people…why does Francesco Aquilini need a further court order?

Divorce files are generally only accessible by the spouses and their respective legal counsel.

However, court proceedings are usually opened to the public, and court decisions are also made public.

Pursuant to Rule 5-1 of the Supreme Court Family Rules, the Supreme Court of British Columbia can make an order sealing financial information, if:

 the court considers that public disclosure of any information filed under this rule would be a hardship on the person in respect of whom the information is filed

Court documents, filed in the above noted application, set out:

One very prominent business owned by the Aquilini family is the Vancouver Canucks. Serious harm would flow to that business if its financial information were made publicly available.

The application brought by Mr. Aquilini should be heard in the Supreme Court of British Columbia (Vancouver Registry) on Tuesday, June 12, 2012, according to NBC Sports.

NOTE – If you need to find a courtroom or hearing time, daily lists can be found on Court Services Online.

Disclosure: rehab and medical records

Can my spouse get access to my medical charts in a family law proceeding? What about a counselor’s file or records from rehab?

The answer is maybe.

In the recent court decision of K.A.P. v. K.A.M.P. Justice Tindale of the Supreme Court of British Columbia considered a husband’s application for production of the following documents relating to his wife:

  • records from the Paradise Valley Wellness Centre (which is the treatment centre the wife attended);
  • clinical records from the University Hospital of Northern British Columbia; and
  • disclosure of the Royal Canadian Mounted Police file involving the Wife and an incident where she was arrested for impaired driving, dangerous driving and driving over .08.

The wife consented to provide the police disclosure.

In regard to the disclosure of  medical and treatment records, the court considered the arguments of both the husband and wife.

In support of his argument for production of the documents, the husband relied on a previous court decision in which confidential records in the hands of a third party were ordered produced as they were clearly relevant on an issue between the parties and the court concluded that “the interest of the children and the interest of justice outweigh her interest in privacy”.

The wife argued that “the test for the production of documents is whether or not the documents can prove or disprove a material fact.”  The wife argued that as the husband had previously agreed to joint custody and joint guardianship (with knowledge of her “problems”) there was nothing to be gained by disclosure of confidential documents.

The court ruled in favor of the husband, and in favor of disclosing the documents, giving the following reasons:

  1. “In my view, given the long-standing difficulties that the respondent has had with depression and substance abuse and the fact the respondent wants to be relieved of the necessity of having a nanny living in her residence, it is clearly relevant, necessary and material to have as much information available to make this determination”; and
  2. “I also conclude that the interests of the children outweigh any privacy interest the respondent might have.”

Note to family law litigants: your medical history could be considered producible in court proceedings.