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

Before the U Haul: Top 10 tips on cohabitation and co-parenting

Please come and join Michelle Kinney and me on Sunday, July 10, 2016 from 2:00 p.m. to 2:30 p.m. at the Pride Festival for our presentation – Before the U Haul – Family Law for Queers:

Top ten tips on co-habitating and co-parenting.

Insight on: legal rights and responsibilities, property/debt division and support, queers having kids, assisted reproduction and fertility law.
Workshop Leader: Michelle Kinney is a lawyer with Cassels Murray, practicing in the area of family and fertility law. As one of the architects of the BC Family Law Act, Michelle has in-depth knowledge of BC’s family law. Michelle is a member of Fertility Law BC, which specializes in helping people starting a family through assisted reproduction.

There will be prizes for participation so come prepared to speak up and have fun!

Pride 2016

Tickets are available for free online – register now!

The event will be at MacDonald Park in James Bay.

Renee Cochard, Q.C. – New Judicial Appointment

We are pleased to report that Renee Cochard, Q.C., of Cassels Murray, has been appointed to the Provincial Court of Alberta.

Renee website

As set out in the Alberta Government’s Press Release:

“Ms. Cochard’s experience, expertise and notable dedication to community service and professional development make her an excellent addition to Alberta’s judiciary. I congratulate her on this appointment.”

Kathleen Ganley, Minister of Justice and Solicitor General

We will certainly miss seeing Renee at the office every day but look forward to keeping in touch and reading her decisions!

Congratulations.

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

  • 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

  • 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.”