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.

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…

  • High Conflict Parenting: Must Read Case

    Each weekend I like to review the recently reported decisions from British Columbia and Alberta. They are available online at the Supreme Court of British Columbia website and the Alberta Court of Queen’s Bench website (via CanLII).

    This Saturday (while I was getting my hair done) I came across a “must-read” decision of the Honourable Madam Justice D. L. Pentelechuck from the Alberta Court of Queen’s Bench: A.J.U. and G.S.U. (2015 ABQB 6) (“AJU”) (NOTE/CAUTION: People do laugh at me when I come into the salon with a stack of recent court decisions and highlighters).

    The AJU decision “offers an opportunity to consider the role that Court-appointed Parenting Experts play in the determination of the best interest of children, and the evidentiary standard to which the parties should be held in a custody dispute.” (paragraph 3).

    In the AJU case, Justice Pentelechuck considers a situation where the father sought sole custody of the parties’ two daughters and the court appointed parenting specialist supported his claim in an assessment report which recommended that the father have sole custody of the children. At first blush this might seem like a strong case for the father – his position is supported by an expert.

    From my perspective, this case is an illustration of the importance of critical and objective review of the evidence and allegations put forward in parenting disputes. In this case, while the father initially may appear to have a strong case (supported by an expert report), throughout the trial, counsel for the mother, Renee R. Cochard Q.C., illustrated – both by objective evidence and cross examination of the parenting expert and father – that the report was flawed and the criticisms of the father towards the mother’s parenting time were without merit. This written decision highlights the importance of (both counsel and the parties) carefully reviewing the evidence and allegations forwarded in parenting disputes. Ms. Cochard’s successful cross examination of the Parenting Expert diminished the persuasive value of the expert report that was before the court.

    By way of example the father “takes issue with [the mother’s] purchase of a trampoline, and also objects to the girls’ participation in horseback riding, and tubing down the Pembina River with their mother.”
    The Justice did not find validity to this concern and noted that “The Trampoline in question is an 18” high “Dora the Explorer” trampoline” (paragraph 55) and “None of these complains, individually or collectively, have merit” (paragraph 57).

    Further, in regard to the report of the Parenting Expert, the court noted: “First, the basis for her recommendations were seriously undermined during cross-examination” (Paragraph 96). For example, the Parenting Expert noted in her report that the children appeared to be getting sunburnt during the time she observed them, however, during cross examination the parenting expert “admits she did not confirm whether or not the girls actually suffered sunburn on that particular day” (Paragraph 97). Another example of the erosion of the validity of the expert report at trial was that the expert alleged that the mother did not follow-through on educational matters. However, cross examination exposed that the expert “did not see the educational centre [the mother] had in the basement.”

    This case is a good read if you are going through a high conflict parenting dispute and there are expert reports and/or evidentiary issues. The court provides a review of expert evidence (starting at paragraph 132), hearsay evidence (starting at paragraph 135), illegally obtained evidence (starting at paragraph 151), and lay opinion evidence (starting at paragraph 170). Counsel, self-represented litigants and parties to parenting disputes will benefit from reading this case.

    Dogs

    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:

    Family Court: go and watch

    Almost every client I have who has not been to court before – and is considering bringing a court application or starting a court action – wants to know what is going to happen during their time in the courthouse.

    When I am asked the question “what is court going to be like” my usual answer, after giving a general explanation of the court process, is: “go and check it out to see first hand…admission is free”. The public can watch proceedings in the British Columbia Supreme Court and British Columbia Provincial Court on most weekdays.

    In British Columbia there are certain proceedings that are closed that are closed to the public (i.e. you cannot watch them without permission from the court). For example, you will not be able to watch Judicial Case Conferences and cases that have publicity bans. The majority of cases, however, are open to the public.

    If you would like to go and watch court, to get an idea of what it is all about, you can find the Court Registry in your region online.

    If there is a specific case you want to watch, a specific Justice, Judge or Master you would like to see or a specific type of proceeding that you would like to learn about, you can find the court room and time by looking at the Hearing Lists online.

    Often the most useful proceedings to watch, if you are involved in a family law case, are family law chambers. During family law chambers you will usually be able to see a number of different types of issues being dealt with (for example child support, spousal support and parenting time) in one morning. You will also get the opportunity to see a number of different lawyers arguing different cases.


    Avoid not knowing what is going on… go and spend a morning at court

    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.