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

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 …”

Clawbies: 2012 Finalist!

Family Law Refocused was a finalist for the 2012 Canadian Law Blog Awards!

From the Clawbie website:

Non-Legal Audience Blog

As we noted above, most blogs are written for a non-lawyer audience — that is to say, for clients (and increasingly, for professionals who work with lawyers). But this category is meant to honour blogs that specifically target a readership with very little knowledge of the law but a strong need for access to and information about legal issues. This year’s award goes to SOQUIJ | Le Blogue, the official blog of Quebec’s Société québécoise d’information juridique, which provides understandable and accessible legal knowledge to everyday Quebecers (and to many of their avocat(e)s and notaires as well).

Runners-up: These blogs are singled out for their special focus on facilitating legal information to people without legal backgrounds and training.

Family Law Refocused, by the law firm of Cassels Murray in Victoria

Offside: A Sports Law Blog, by Ottawa lawyer (and radio host) Eric Macramalla

Pokerati, by Stuart Hoegner of Toronto and Las Vegas’s Gaming Counsel

Congrats to all of the winners and other finalists – there are some amazing Canadian Law Blogs!  Check them out at www.lawblogs.ca.

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?

Wedding: a Christmas gift

Last week a former homeless couple in Calgary got married with the help of donations.  As reported by Global Calgary:

Dolly Sutherland and her partner Mark fell on hard times and ended up homeless for several years. They spent many nights at the Calgary Drop-In and Rehab Centre, but through it all there was one constant.

“I have someone that he’s there to hold my hand, when I fall down he’ll pick me up again,” Dolly says of Mark.

The feeling is mutual.

“To me she’s everything,” Mark says. “She’s family, friendship and love to me, one big package.”

It’s no wonder the couple wants to make it official, but weddings are pricey these days. So when the Drop-In Centre asked Dolly what she wanted for Christmas, one thing immediately came to mind—and incredibly, her wish was granted.

“I couldn’t believe when I had that phone call, my wish came true,” Dolly says.

A stranger offered to pay for the couple’s marriage license, and soon others stepped up to pay for flowers, a cake, dress and all the other little details.

For more information about the Calgary Drop-In and Rehab Center you can check out the website.

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!

“D” is for Divorce

I was watching my favorite video on the internet right now when I came across this video about an episode of Sesame Street called “D” is for Divorce:

As described by the Daily Mail:

Sesame Street has aired an episode which deals with the sensitive issue of divorce for the first time.

A scene on the issue had been originally written for the show in 1992 – but was a disaster when tested before an audience of pre-schoolers who misunderstood and became upset.

The idea was shelved until this year – when writers came up with a slot featuring a fairy called Abby Cadabby whose parents have been divorced for a while. The 13-minute segment will be aired online today. 

Check out the online article and the above video describing the making of the episode.  You can also find a summary of the 1992 episode, that was never aired, on Wikipedia.