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

Fertility Law BC

Congratulations to barbara findlay, Q.C., Monique Shebbeare, Lynda Cassels, Michelle Kinney and Zara Suleman on launching the Fertility Law BC website.

If everything you know about surrogacy is limited to Baby Mama the movie, and you are interested in learning more, you MUST check out this website – it is a wealth of information.

The site is an easy to use resource for fertility law in British Columbia and Canada including sperm donation, egg and embryo donation and surrogacy.

The text is straightforward and provides practical and accurate information: it breaks things down to the basis:

Let’s start with the lay of the land. From the point of view of BC law, assisted reproduction is such things as:

Getting pregnant using home insemination with a friend as the sperm donor
In vitro fertilization (IVF), where conception of the embryo takes place in a lab and the embryo is then transferred to a woman’s uterus
Artificial insemination (intrauterine insemination/IUI) with a spouse’s sperm to increase the change of pregnancy
Having a child with the help of a surrogate who will carry the fetus until birth
Conceiving a child with the help of donated sperm, eggs or embryos
Assisted reproduction is not sexual intercourse. In fact, BC’s Family Law Act specifically defines assisted reproduction as “a method of conceiving a child other than by sexual intercourse”.

Many different people use assisted reproduction: same-sex couples, heterosexual couples, single people wanting to parent, and couples where a partner is transgender.

There are both federal and provincial laws about assisted reproduction. The federal laws essentially focus on the ethics and safety of assisted reproduction: what we are and are not allowed to do in Canada. Provincial law focuses more on parentage: who the legal parents are of the children born using assisted reproduction. And of course there are other laws and regulations governing the professionals and clinics who provide assisted reproduction services.

Additionally, the Fertility Law BC lawyers will be presenting at Continuing Legal Education Course “Baby Making: Fertility Law and Assisted Reproductive Technologies” on April 8, 2016 at the Pan Pacific Hotel in Vancouver, British Columbia.

Incomes over $350,000.00: Spousal Support Advisory Guidelines

I receive a weekly e-mail from Supreme Court Advocacy (a boutique law firm in Ottawa focusing on Supreme Court of Canada advocacy and agency).

The newsletter from Supreme Court Advocacy is a great resource and provides an up to date summary of activity at the Supreme Court of Canada.

Earlier in March, this newsletter provided a very good summary of the case of Hathaway v. Hathaway (2014 BCCA 310).

In this case, Mr. Hathaway (a high income earner) had been ordered, by the British Columbia Supreme Court, to pay child support of $12,814.00 per month and spousal support of $24,124.00 per month. At the trial level Mr. Hathaway’s income was determined to be one million dollars a year by the Honourable Mr. Justice Abrioux.

Mr. Hathaway appealed this decision and the British Columbia Court of Appeal denied his appeal.

Mr. Hathaway, at the Court of Appeal, contended that the trial judge erred in three respects (failing to consider Section 11 (which sets a ceiling for incomes over $350,000.00 per annum) and Section 12 (relating to property division) of the Spousal Support Advisory Guidelines, failing to consider the provisions of the Federal Child Support Guidelines regarding incomes over $150,000.00 (Section 4), and the principles relating to reapportioning family assets). Mr. Hathaway’s appeal was dismissed by the Court of Appeal and leave to the Supreme Court of Canada was also dismissed.

The case of Hathaway highlights the importance of considering/arguing Section 4 of the Federal Child Support Guidelines and Section 11 of the Spousal Support Advisory Guidelines at a trial level. A failure to do so will limit the ability to make such arguments or considerations at an appeal level (as per paragraph 34 of the Court of Appeal Decision).

The upshot of this case, from my perspective, is:

  • Reading the Child Support Guidelines and the Spousal Support Advisory Guidelines is a free and useful exercise if support issues are at play in your family law matter (regardless of your income);
  • If you are dealing with a case where incomes are over $150,000.00 per annum pay special attention to Section 4 of the Child Support Guidelines;
  • If you are dealing with a case where incomes are over $350,000.00 per annum pay special attention to Section 11 of the Spousal Support Advisory Guidelines;
  • It is helpful to get advice from an accountant in a case where you are working to determine an appropriate guideline income for support purposes (I encourage my clients to consult with an accountant regarding determination of income for support purposes regardless if they are paying or receiving support – it is very helpful); and
  • This is a first world problem to have…
    Guideline income

  • Family Law Arbitration

    Under the provisions of the Family Law Act (Section 8(2)) lawyers have an obligation to advise parties who consult with them about various dispute resolution options. One option for consideration is arbitration.

    What is Arbitration?

    Arbitration is identified in the Family Law Act (Section 1) as “family dispute resolution”: a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside of court.

    Family law arbitration is governed by the Arbitration Act. Section 2.1 of the Arbitration Act sets out specific requirements for an arbitration agreement in family law disputes.

    Arbitration is a private dispute resolution mechanism where parties, who have been unable to reach a resolution to an issue, agree to appoint an independent and neutral party (an arbitrator) to make a decision that is binding on both parties.

    From my perspective, privacy and control over the process are some of the significant benefits of arbitration. Parties generally do not have control of who sits in the courtroom watching the proceedings and hearing the evidence (for example a neighbour could be in the courtroom on an unrelated matter and hear your case as they wait for their case to be called). By contrast, in arbitration the parties decide who is to be present (and generally it is limited to the parties, their lawyers and the arbitrator). Additionally, parties and their lawyers can set the schedule of an arbitration to a far greater extent than they are able to in a court proceeding (in a court proceeding the trial list or docket list may be full and despite being prepared to proceed a hearing will be moved to another date on short notice).

    As described on clicklaw.com:

    “Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See “circumstantial evidence,” “hearsay,” and “testimony.” and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.”

    What is Mediation/Arbitration (“Med/Arb”)?

    Med/Arb is a dispute resolution mechanism that is a variation of arbitration. The mutually agreed upon independent and neutral arbitrator starts out as a mediator but in the event the parties cannot reach a decision through mediation the mediator becomes an arbitrator and makes a decision that is binding on the parties.

    Further described on clicklaw.com:

    “In a med/arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can’t be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It’s really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.”

    Who can act as an arbitrator?:

    The qualifications for family law arbitrators are set out in the Family Law Act Regulation (Section 5).

    Where can I find an arbitrator?:

    Resources for arbitration:

    Common Law Relationships: Bressette v. Henderson

    The Honourable Madam Justice S. Griffin recently gave reasons for judgment in the case of Bressette v. Henderson addressing the important question:

    Does the Family Law Act (the “FLA”) apply to common-law spouses whose relationship started and/or ended in the two years immediately prior to the FLA coming into force?

    The reason that this question matters, in short, is that the application of the FLA to certain common-law relationships could result in a totally different division of property for spouses than would otherwise occur if the FLA did not apply (for example, one spouse might get half of all family assets if the FLA applied to their relationship but very little if the FLA did not apply).

    Prior to the FLA coming into force, common-law couples in British Columbia were unable to apply for property division relief under the Family Relations Act (the “FRA”), the statute that provided for property division upon the breakdown of a marriage.

    Instead, common-law couples were limited in the remedies they could seek for property division. As Madam Justice Griffin succinctly summarizes:

    The common law has developed tools to assist unmarried partners in making claims to property held in teh name of the other partner after the relationship breakdown. These tools, under the usual description of unjust enrichment and constructive trust, are an attempt to achieve fairness in the division of property to which both parties had contributed directly or indirectly, but which, for whatever reason, ended up registered in one party’s name alone.

    The tools that common-law spouses were limited to bring claims under, prior to the enactment of the FLA, often create issues in determining the proper remedy for property division and in determining what the appropriate proportionate share of assets should be for each spouse: essentially the results of application of unjust enrichment and constructive trust remedies to property division are difficult to predict.

    The FLA provides more certainty for division of property upon the breakdown of a common-law relationship. Under the FLA generally the starting point for property division is an equal division of family property and family debt.

    In order to bring a property division action under the FLA, a common-law spouse must start a proceeding for property division under the FLA no later than two years from the date of separation. Effectively, if you were in a common law relationship and separated earlier than two years before March 18, 2013 a claim for property division under the FLA will be barred by the passing of the limitation period.

    There are transition provisions in the FLA that deal with some of the issues arising from the coming into force of the FLA, but they are unclear on the application of the FLA to the rights of common-law spouses who broke-up in the two years immediately before March 18, 2013.

    Justice Griffin states:

    A decision on the transition provisions will have significant implications on the rights of common-law spouses who separated within two years of the FLA coming into force. One can imagine all kinds of variations in circumstances: those whose relationships straddled the FLA, starting before but not ending until after the FLA came into force; those whose relationships ended and who obtained a decision in litigation over their property rights or who reached an agreement with the other unmarried spouse all before the coming into force of the FLA; and those whose relationships ended, but who remained in active litigation and had not resolved their property dispute before the coming into force of the FLA. There are arguments available for different treatments of these various circumstances.

    Justice Griffin specifically did not make a determination in the application of the FLA to the Bressette and Henderson relationship stating:

    Unfortunately, I do not feel that I have had the benefit of as full a legal argument as is necessary to resolve the issue of whether or not the property provisions of the FLA apply to these parties… I am concerned about deciding the issue of the applicability of the FLA in the absence of full legal arguments.

    These issues will likely be determined before the courts in the coming months and years. While she does not make a decision in regard to the applicability of the FLA to common-law couples who separated between March 2011 and March 2013, Justice Griffin does make a comment on the issue (a comment I agree with): “Here, if the FLA was applicable to these parties, it would be “significantly unfair” to reach a different result than that based on the unjust enrichment remedy, given that the common-law remedy is based on fairness and the legitimate expectations of the parties. Here the parties never considered or expected that there would be a new statutory regime applicable to the relationship during the course of the relationship.”

    Live on CFAX…Real Parenting Interview

    This Saturday (March 30, 2013) I will be interviewed on Real Parenting by Shirley Broback.

    The interview will be focused on the Family Law Act provisions regarding parenting and the inclusion of children’s input into parenting arrangements.

    Host of Real Parenting, Shirley Broback and proud mom of two little ones!

    Shirley Broback is the host of Real Parenting and the proud mom of two little ones!

    Check out the interview by tuning in: C-FAX 1070 Saturday at 12-1pm PT!

    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”.