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

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.

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.