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

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: 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: Debt or Loan?

At the National Family Law Conference Stacie R. Glazman, LL.M., C.S., CBV, presented a paper entitled “Thanks for the Money, Mom and Dad.  Do I have to Pay You Back?”

Ms. Glazman is an excellent speaker (and author) so the topics stuck with me.  Her paper, and presentation, addressed an issue that can become contentious: if a parent advances money to their married child:

  • is the money a gift?
  • is the money a loan?
  • is the money a gift to only their child (and not the spouse)?
  • is the money a loan to only their child (and not the spouse)?

Often becasue these gifts/loans are given in the context of family relationships, they are not documented and recorded with the same level of detail that business transactions are.  When parties separate, and money has to be separated, and disputes often arise as to who gets the benefit of the money from mom and dad, or who has to pay the money back to mom and dad.

In 2007 the Supreme Court of Canada released a decision dealing with the loan vs. gift issue, in an estate context.  In the Pecore v. Pecore decision, the court found that the presupmtion of advancement is not applicable to transfers between parents and adult independent children.  Previously, the presumption of advancement had applied to property transfers between parents and independent adult children where no consideration was given.  The presumption of advancement meaning: a presumption that the transfer was intended as a gift.  Baesd on the Pecore decision, the presumption is that of a resulting trust (i.e. a “loan”).

Ms. Glazman summarizes the test as follows at page 8 of her paper:

  1. Determine if the presumption of resulting trust applies because the transfer is gratuitous and the recipient is obliged to return it;
  2. The onus is on the person claiming “gift” to show that a gift was intended;
  3. Look to the evidence as to the transferor’s actual intention to see if it is sufficient to rebut the presumption on a balance of probabilities.
How does this apply to family law?

Many courts across Canada have found that the law in Pecore has been applied to family law cases where there are “gift vs. loan” disputes.  For example, the recent case of T.S. v. M.S. and J.P provides a useful summary of the application of the Pecore decision to family law in British Columbia at paragraph 35, citing the case of Hawley v. Paradis:

29        … The recent cases of Ng2008 BCSC 172 (CanLII), [2008 BCSC 172 ] and Krupa v. Krupa, 2008 BCSC 414 (CanLII), 2008 BCSC 414 [Krupa], have both considered the principles in Pecore within the context of transfers of money or property made by a parent to a child within a dispute over the division of marital property. Ng and Krupa are instructive in this case. In Ng at para. 37, Garson J. held that, according to Pecore, “a presumption of advancement as between parents and children will only arise in cases where the child is a minor”. She further stated that the presumption of a resulting trust had been rebutted in that case. In my view, Mr. Paradis’ contention that Garson J. thought other conclusions could be reached regarding the presumption of advancement is untenable. Rather, it appears clear to me that she was indicating that she was bound to follow the law as set out by the majority in Pecore, as am I. In Krupa, Madam Justice Ross concluded that the presumption of advancement with respect to gratuitous transfers from a parent to a child is limited to transfers involving minor children. She also stated at para. 78, “There is a presumption of resulting trust with respect to gratuitous transfers from a parent to an adult child.” Ross J. further considered D.L.M.2008 NBCA 2 (CanLII), [2008 NBCA 2, 289 D.L.R. (4th) 37] and held that the factors in Locke continue to be relevant to ascertaining intent when considering whether a transfer made by a parent to an adult child is a loan or a gift.

30        Based on the case law presented to me, I conclude:

  1. that the presumption of advancement no longer applies between adult children and their parents;
  2. that as between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;
  3. that the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or a loan;
  4. that the factors considered in Wiens and Locke will assist the court in determining whether the advance was a loan or a gift.

What evidence and factors will the court consider?

The court may consider a number of factors in making the determination if a transfer was a gift or a loan.

The factors set out in the Locke case, are:

  • Whether there are any documents showing that the transfer was a loan;
  • If a manner of repayment is specified;
  • If security is held for the loan;
  • If there are advances to one child and not to others (i.e. if this is a pattern of giving);
  • If there was a demand for payment prior to separation;
  • If there has been some form of repayment; and
  • If there is a likelihood or expectation of repayment.

The evidence in each case will have an important impact on determining if the transfer was a gift or loan.

Family Law Act Fact Sheet

On Tuesday, I presented at the eWomen Network Vancouver Island Accelerated Networking Dinner.

The presentation I gave was a summary of changes that are coming with the new Family Law Act.

Carly and I at the eWomenNetwork dinner on August 14, 2012

According to the explanitory notes to the Family Law Act, it will do the following  (bold portion taken from the explanatory note to the Family Law Act – italics portion are Christine’s commentary):

  • Promote family dispute resolution to resolve disputes;
  •  More emphasis placed on mediation, collaborative law, arbitration, parenting coordinators and out of court dispute resolution;
  • Clarify when and how agreements may be set aside;
  •  The court will only be able change the terms of a written agreement if: one of the parties failed to disclose significant property or debts, one person took advantage of the other’s vulnerability, one spouse did not understand the nature and consequences of the agreement, there is a common law reason the contract would be voidable;
  • The test for determining if an agreement is valid changes from “unfair” to “significantly unfair”;
  • Establish a comprehensive scheme to determine a child’s legal parent, including in situations where technology has been used to assist reproduction;
  • Ensure that the best interests of the child are the only consideration when resolving parenting disputes, and add into the consideration of the best interests of the child any history of family violence and, unless inappropriate, the child’s views;
  • There is no presumption of equal parenting time;
  • Emphasize responsibilities to children and promote cooperation by eliminating divisive terms, replacing “custody” and “access” with “guardianship”, “parental responsibilities” and “contact with a child”;
  • Establish a clear framework to determine whether a parent may relocate with a child;
  • Extend rights and duties respecting property division to unmarried persons who qualify as spouses, and modify the property division framework to meet recommendations from the British Columbia Law Institute respecting pension division;
  • Spouses will have access to the property division provisions of the Family Law Act.  A spouse is a person who has lived in a marriage-like relationship for two years or is legally married.
  • Align spousal support more closely with the Divorce Act (Canada) and eliminate parental support;
  • The court may order that spousal support (and child support) may continue after the person who pays support dies.
  • Increase the range of remedies and consequences for non-compliance with agreements and orders;
  • Replace civil restraining orders with orders to protect safety and orders to manage behaviours that are problematic but do not present a risk of family violence;
  • Amend the Commercial Arbitration Act to change the title and add provisions unique to arbitrations respecting family law disputes;

There are many, many, many more details and changes to be aware of –  it is very important to consult with a lawyer for legal advice.   The extended version of my presentation goes into more of these details.  I will be interested to see, after the legislation comes into force, if it does all of things it promises to do!

Contempt of Court: what is it and how to avoid it?

At the National Family Law Conference last month, the Honourable Madame Justice Elizabeth Jollimore of the Supreme Court of Nova Scotia  and Sharon Kravetsky  gave an excellent presentation entitled: “Contempt: Substantive Law and Strategic Considerations.”    This presentation got me thinking about contempt of court in a family law context – people have asked me if they can have their spouse (or former spouse) found in contempt of court – without knowing exactly what it involves.

What is civil contempt of court?

Black’s Law Dictionary defines civil contempt as: “The failure to obey a court order that was issued for another party’s benefit.  A civil contempt proceeding is coercive or remidial in nature.  The usual sancation is to confirm the contemner until he or she complies with the court order.”

The Saskatchewan family law case of Brown v. Bezanson explains what contempt of court is used for and what needs to be met to make a finding of contempt:

A proceeding for civil contempt is available to redress a private wrong by forcing compliance with an order for the benefit of the party in whose favor the order was made.  Sanctions for civil contempt are thus mainly coercive in nature.  Their aim is to force complaince with the order.  They may also be punative where the circumstances warrant it.

The burden of proof in contempt applicaitons is beyond a reasonable doubt and rests with a party alleging the contempt.

In civil contempt proceedings the following evidence must be proven beyond a reasonable doubt:

  1. The terms of the order must be clear and unambiguous;
  2. The contemner must have knowledge of the terms of the order;
  3. The breach of the terms of the order;
  4. The appropriate mens rea must be present.

JP Boyd’s BC Family Law Resource provides a description of the procedural process to make an application to seek a finding that someone is in contempt of court in a family law proceeding.

What are the penalties for being found in civil contempt?

In terms of penalties for contempt, Sharon Kravetsky states in her paper “Contempt: Compliance, Restoration and Punishment” at page 21:

Traditional responses to contempt are fines or imprisionment.  These responses may be the reason contempt is such an unsatisfactory remedy in family law.  Stretching already strained finances or incarcerating a care-giver or access parent does little to serve the best interest of a child.  In contempt cases which involve children, there is always concern about the best interests.  More imaginative responses may be necessary.

Penalties for contempt of court in family law cases have included (but are not limited to): incarceration, terms of incarceration, fines, court ordered costs, suspension of child support payments, make up access visits, change in primary care of a child, and changes in decision making authority for a child.

How can I avoid being found in contempt of court?

Generally being in contempt of court is something you bring upon yourself by account of your own behaviour (by doing or failing to do something).  Some common sense tips for not being found in contempt include:

1) Do not act like my Cousin Vinnie:


2) Follow court orders;

3) If you are unclear about a court order, seek clarification as soon as possible;

4) If you are unable to comply with a court order, seek to have the court order changed by the court so you can comply with the terms of the order; and

5) Consult a lawyer with any quesitons you have about a court order.