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

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”.

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?

Without Prejudice: what does it mean?

What does “without prejudice” mean and why is it on the top of so many letters my lawyer gets from my husband’s lawyer?

A British Columbia Supreme Court decision released last week looked at the definition and meaning of without prejudice and applied it to the family law context.

There are lots of differently worded definitions of “without prejudice”.

I like to think of it generally as meaning:

What happens in settlement negotiations stays in settlement negotiations.  A settlement offer cannot be brought up in court, put in an affidavit or used as evidence in proceedings (unless both parties agree).

What makes something without prejudice?

The Honourable Mr. Justice Cole cited a previous decision of the court, setting out the requirements for correspondence to be without prejudice:

The words “without prejudice” are not necessary to invoke the privilege. The privilege is determined by the circumstances. There are only two requirements:

1) A litigious dispute exists or is contemplated; and

2) The purpose of the communication is to buy peace or effect settlement or respond to such a communication.

So how does without prejudice work? Can you provide an example?

Here is a hypothetical example – My husband are recently separated.  Our lawyers have organized a four-way meeting to see if we can resolve our disputes through negotiation.  At the four-way meeting we discuss two hotly contested issues: who keeps the family dog and who gets to stay in the Sunday running group.  I offer to give my husband the family dog  if he will agree to move to Fort McMurray (so I won’t  bump into him at the Running Room).

We cannot resolve our disputes and go to court.  My husband tries bring up my earlier offer to give up the dog in court.   Lucky for me, this offer is not admissible in the court proceeding because it is made in a settlement negotiation.  Further, my husband could not use my offer to give up the dog as evidence that I did not want the dog or that I was a bad dog owner.

Why do we have “without prejudice”?

We have the concept of without prejudice to encourage settlement and the early resolution of disputes outside of the court process.  If offers people made to try and settle matters could be brought up in court, far fewer offers would be made.

As a note, some feel that “without prejudice” is over used – and that if you make an offer it should be a reasonable one that you believe in.  My thought on this is that it is useful to have without prejudice discussions and offers, as it helps move things forward.  That being said, the phrase can be overused.

Are there limitations to something being “without prejudice”?

Yes, there are.  You cannot use “without prejudice” to get away with/hide from misleading the court or perjury.  As stated by Mr. Justice Burnyeat in the case of Berry v. Cypost:

While it generally the case that the public interest in encouraging settlements will not be served by making without prejudice statements or documents admissible, I am satisfied that the overriding public interest to discourage perjury will not be served by protecting potential evidence of perjury behind without prejudice settlement discussions. In the words of Tysoe, J.A. in Greenwood, the protection of without prejudice settlement discussions was “… never intended to give protection to this sort of thing” (at p. 268). As was stated by the authors of “The Law of Evidence in Canada”:

The privilege cannot be used as a means to deceive the courts as to the facts, by excluding evidence which would repel a charge of fraud made by a party or who is shown by the impugned communication to have effected a waiver or made an election (at p. 729).

Additionally, a party can make their offer “without prejudice” except to costs.  As JP Boyd summarizes (in his 2009 blog on the topic of “without prejudice”):

Proper “without prejudice” letters can’t even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs.

Some helpful tips:

  1. Do not rely on something being without prejudice – it is important to make your intention abundantly clear at the beginning of a discussion (preferably record in writing that your negotiations are without prejudice.  You do not want to later end up in a discussion/court hearing focused on if your communication was intended to be without prejudice (there are better ways to spend your time and money);
  2. Check with your lawyer before you shoot off an offer (your lawyer will have useful feedback on the offer you are making and if it is an appropriate time to make it);
  3. Do not use disrespectful/offensive language even if you think that you are using it in a “without prejudice” context (you never know where the correspondence will show up – being without prejudice does not mean people cannot read it;
  4. If you make a demand it may not be considered without prejudice; and
  5. If you are not sure if something is without prejudice, ask your lawyer.

Some additional reading:

  1. Without Prejudice vs. Solicitor Client Privilege (Christelle Vaval);
  2. What’s Without Prejudice and What’s Not (JP Boyd); and
  3. Sopinka, Lederman and Bryant, The Law of Evidence in Canada

Obviously I would never offer to give up the family dog!

Undue Hardship: what is it and do I qualify?

A decision released today by the Supreme Court of British Columbia sets out a useful summary of the law of undue hardship.

What is Undue Hardship?

Undue hardship has a few legal definitions and meanings.

In family law undue hardship refers to something a parent could claim under the Federal Child Support Guidelines (Section 10) in certain cases.  Section 10 of the Guidelines sets out some circumstances that might lead to a finding of undue hardship, as follows:

  • the parent has responsibility for an unusually high level of debts reasonably incurred to support the parents and their children prior to the separation or to earn a living;
  • the parent has unusually high expenses in relation to exercising access to a child;
  • the parent has a legal duty under a judgment, order or written separation agreement to support any person;
  • the parent has a legal duty to support a child, other than a child of the marriage, who is: under the age of majority, or the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
  • the parent has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

According to Justice Canada’s website:

In some situations, the amount of child support set in the child support tables, combined with other circumstances, could create undue hardship for you, for the other parent, or for a child. In those situations, a different child support amount could be determined.

 What is the test for undue hardship?

The British Columbia Court of Appeal explained the two part test in a 1993 decision as follows:

The undue hardship test under s. 10 is two-fold. The spouse applying for relief under this section must prove that payment of the table amounts would cause undue hardship under s. 10(1) having regard to the criteria in s. 10(2). If this test is met, the applicant must go on to establish that, if required to pay the amount of maintenance otherwise payable under the guideline table, the standard of living of his or her household would be lower than that of the household of the other spouse. If this dual test is met, the court has a discretion to award a different amount of maintenance than that otherwise required under the Guidelines.

Part 1: What is evidence of undue hardship

Master McCallum, as he then was, gave some examples of what might constitute hardship in a 1999 Supreme Court of British Columbia decision:

Evidence of hardship might include evidence of having to move from one’s accommodation, give up a vehicle, operate on a restricted diet and so forth.

Part 2: Standard of living comparison

The standard of living comparison  reminds me of the lyrics in Gold Digger:

I know somebody payin child support for one of his kids
His baby momma’s car and crib is bigger than his
You will see him on TV Any Given Sunday
Win the Superbowl and drive off in a Hyundai

I am reminded of the Gold Digger lyrics for two reasons (neither of which being that I like the message in the song).  They are:

  1. The examples given would not likely, on their own, lead to a successful undue hardship claim.  As the British Columbia Court of Appeal has said (adopting an Ontario judgment): “Undue hardship is a tough threshold”; and
  2. Undue hardship is one area of family law that does invite parties to compare the standard of living in their respective households.   The Guidelines state that an application for undue hardship must be denied if it is of the opinion of the court that the household of the spouse who claims undue hardship would (after determining the amount of child support) have a higher standard of living than the household of the other spouse.  Basically, if the gentleman described by Kanye did have a bigger house and car than the mother of his child, he would fail in his hardship claim.

The  British Columbia Supreme Court decision released today not only provides a useful review of the law surrounding undue hardship – it is also interesting because it adopts language from Saskatchewan Court of Queen’s Bench decision Jackson v. Holloway, stating  a party “has an obligation and is expected to organize his … affairs with due regard to that obligation.”

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!

 

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.