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

Family Law: guide to the new Family Law Act

Most family law lawyers in British Columbia (including this one) spent the last two days engaged in the Continuing Legal Education Society of BC course: The Family Law Act: Everything You Always Wanted to Know But Were Afraid to Ask.

If you are looking for a “Coles Notes” version of the new legislation, there is a very easy to read publication online: the Guide to the New BC Family Law Act.   The guide is currently available in English, French, Chinese, Spanish and Punjabi.

Of course, just like the Coles Notes for Macbeth, you are going to miss out on some great stuff by skipping out on the full text…the full version of the Family Law Act is available online.



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 …”

Divorce: how long does it take?

Kim Kardashian separated from Kris Humphries after 72 days of marriage, but 365 days later, the divorce proceedings are still inching towards trial.

As reported in the Vancouver Sun:

Superior Court Judge Stephen Moloney told attorneys for Kardashian and NBA player Kris Humphries to return to court in mid-February to set a trial date to either dissolve or annul the couple’s 72-day marriage. He didn’t set a deadline for depositions and other pre-trial investigation to be completed, but indicated a trial could be held early next year if it is ready by Feb. 15.

 So how long does it take to get a divorce?

Legal time requirements for divorce are different in different countries.  In Canada, the Divorce Act sets out that a court can grant a divorce if there has been a breakdown of the marriage.    A breakdown of a marriage is described in Section 8 of the Divorce Act as:

8(2) Breakdown of a marriage is established only if

  • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
    • (i) committed adultery, or
    • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

So, in Canada, you have to have lived separate and apart from your estranged spouse for one year prior to a divorce being granted unless there has been adultery or cruelty (as a note, if you are proceeding on adultery or cruelty there are specific evidentiary requirements that must be met).  After the year of separation, the process of getting the actual divorce usually between a couple of weeks and a couple of months if it is uncontested.  A breakdown of the timeline and steps can be found on JP Boyd’s family law resource.

Also, the Divorce Act sets out that a court in a province may only grant a divorce if one of the spouses has been ordinarily residence in that province for one year immediately preceding the commencement of divorce proceedings.

If a divorce can be finalized after one year of separation, why are my divorce proceedings entering year three?

The answer is, quite simply, if you agree on everything, and you file all of the right paper work, correctly filled out, at the  correct time and in the correct place, your divorce will move along quickly.

As summarized by the Ministry of Justice:

A divorce is relatively easy to get if your reason for the divorce is that you have been separated for a year or more and:

  • you both agree that you want a divorce, and you are not asking the court to settle any other issues, such as custodyaccess or support (this is usually called an “uncontested” divorce), or
  • you both agree that you want a divorce and agree on all other details, such as custody and support (this is called a “joint divorce action”), or
  • you alone are asking for a divorce and for the court to settle other issues, such as custody and support, and your spouse does not dispute the divorce or any of the issues.

A divorce is more complicated to get if your reason for the divorce is cruelty or adultery or your spouse decides to dispute the divorce or any other issues. This is often called a “defended” divorce.

It is when there are issues of disagreement that a divorce can span out longer periods of time.  For example, in the 2008 British Columbia Court of Appeal decision, Laxton v. Coglon, deals with a case in which divorce proceedings had been ongoing since 2001.

New Yorker Cartoon by Tom Cheney


Each family is different.  The length of time it takes to resolve the issues involved in your divorce will vary from others you know.

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 Act: March 18, 2013

I am looking forward to lots of things in 2013…for example:

The Family Law Act is coming into force on March 18, 2012 – it has just been announced.  The new legislation will substantially change family law in British Columbia and it will replace the Family Relations Act.

Welcome 2012: changes to the child support tables

2012 is here and there are already changes you should know about in regard to calculating child support.

The Federal Child Support Guidelines have been amended as of December 31, 2011 for ongoing child support.  A summary of the changes and a useful question and answer can be found online.

The new tables can also be found on the Government of Canada’s website as well as a child support calculator.  In revisiting child support obligations and amounts it is also important to gather and exchange your 2011 income information as required by any agreemetns or court orders you have in place.