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This chapter contains currrent news items, and an index of the archived news items in the chapters that follow; archived news items are listed by year, following the index of current items. Check this chapter frequently, as updated information often makes it here first, before changes are made to the remainder of this website. You may have to click "Refresh" to get the most recent version of this page. Note that items are published in reverse chronological order, with the newest at the bottom of the page and the oldest at the top; the index lists the newest items first. Trying to find a particular article? Try a Google search of this site in the Site Map & Index section. Current Items
Back to the top of the page. Archived Items 2006 · 2005 · 2004 · 2003 · 2002 · 2001 For a quick search of the archives, try using the Google search feature found in the Resources & Links section. 2006
2005
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This website was first published to the internet in November 2001. Back to the top of the page. Current News Items Consumer Taxation Branch Decides PST Policy: On 10 February 2006, the BC Court of Appeal ruled on the form of the order in Christie v. British Columbia. That order declares that the tax on legal services is unconstitutional to the extent that it purports to tax legal services related to the determination of rights and obligations by courts of law or independent administrative tribunals. The new guidelines set out by the provincial government's Consumer Taxation Branch spell out which legal services fall within "the determination of rights and obligations by courts of law or independent administrative tribunals" and provide definitions of barristers' versus solicitors' services, information about independent administrative tribunals and a list of frequently asked questions. In a nutshell, the government has decided that no tax will be payble by low-income person on lawyers' fees for barrister's work. For persons that do not qualify as low-income, the lawyer must collect PST and hold the taxes collected in trust pending the hearing of the government's appeal by the Supreme Court of Canada. That appeal is scheduled to be heard in March 2007. The Consumer Taxation Branch's policy statement is available at: www.sbr.gov.bc.ca/ctb/Legal_Services_Provided_to_British_Columbians.htm Related Articles: 2006 Archives > Update on Ruling Cancelling PST on Lawyers' Fees Back to the top of the page. Spousal Support Advisory Guidelines now have Effect of Law: In one short paragraph, the Court of Appeal for British Columbia has radically changed the law on spousal support in this province. In the recently released decision of Redpath v. Redpath, 2006 BCCA 338, the Court of Appeal has decided that the Spousal Support Advisory Guidelines, an academic paper released in January 2005 by a group of law professors working for the federal Department of Justice, must be applied except when there are "exceptional circumstances" which justify not applying the Advisory Guidelines. More background on the Advisory Guidelines can be found in the articles referenced below. In a nutshell, the Advisory Guidelines suggests two primary mathematical formulae that can be used to calculate the amount of spousal support that may be payable and the length of time support should be paid for. One formula applies where the couple have no children; the other applies when there are children. Of these two formulae, the first is relatively simple to figure out. The second is breathtakingly complex and requires a computer program to do the math. Until Redpath, no superior court in Canada had actually outright applied the Advisory Guidelines formula. In part this was because:
In Redpath, however, our Court of Appeal held that the lower court's award of spousal support in the amount of $3,500 per month was too low. The trial judge did not refer to the Advisory Guidelines in his judgment. The Court of Appeal unanimously held that it could interfere with the trial judge's decision as the old law on the issue had been supplanted by the Advisory Guidelines, and awarded the wife support at $5,000 per month based on the Guidelines: "Now that [the Advisory Guidelines] are available to provide what is effectively a 'range' within which the awards in most cases of this kind should fall, it may be that this particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention. In the case at bar, I find that although the trial judge obviously considered the appropriate factors and did not misapprehend the evidence, the figure of $3,500 per month reached by him is simply too low in light of the Guideline range of $4,542 and $5,510 per month. Mr. Redpath will in future continue to enjoy an affluent lifestyle, and can afford for Ms. Redpath to do so as well. With the help of the Guidelines, I would fix her spousal support at $5,000 per month." The upshot of this is that the Advisory Guidelines must be considered — although not necessarily applied — in all cases where a spouse is found to be entitled to receive spousal support. Strictly speaking, the case concerns the authority of an appellate court to alter what is usually a discretionary matter reserved to the trial judge, however the result means that all decisions, except those made in "exceptional circumstances," must consider the Advisory Guidelines numbers or the decision will be appealable. As a result, all decisions on spousal support will have to employ the Guidelines formulae if they are to be appeal-proof. No appeal is planned from this decision, which means the law in British Columbia on the Advisory Guidelines is as set out in Redpath, until and unless somone appeals their own decision to the Supreme Court of Canada and that court reverses Redpath. In the author's respectful opinion, the Court of Appeal has wrongly given the Advisory Guidelines too much weight, even though the substance of the decision concerns an appellate court's authority to interfere with trial decisions. In making the application of the Advisory Guidelines mandatory by logical consequence, the court has given to the Guidelines an authority that is reserved to laws passed by a majority vote in Parliament, after debate and public scrutiny. The Advisory Guidelines is no such thing. It is an academic paper that our elected representatives had no say in and did not vote upon. Related Articles: 2005 Archives > Court of Appeal Rules on Spousal Support Advisory Guidelines Additional comment on the author's concerns with the Advisory Guidelines is available in the chapter "Spousal Support > The Advisory Guidelines." Back to the top of the page. New Rules for Retroactive Child Support: BACKGROUND: A "retroactive" child support order is an order which takes effect earlier in time than the date on which the order is made. Someone might apply in 2006, for example, for an order that an existing child support order be increased or lowered, as of 2004. If the order was increased, money would be owing for the shortfall between what was paid and what should have been paid; in a case like this, the court would usually make the shortfall payable as a single lump sum. If the order was decreased, money would be owing from the recipient of support for the over payments; normally, this only operates to diminish arrears of support. Over the last several years, different courts have started dealing with questions about retroactive child support in wildly different ways, leading to a certain amount of uncertainty about basic issues like: When is a retroactive order appropriate? If it is appropriate, when should it be retroactive to? How much retroactive support should be ordered? Today, the Supreme Court of Canada gave judgment on four cases from the Alberta Court of Appeal, all dealing with the question of retroactive child support, D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra. The rulings were given in a single decision, with a cite of 2006 SCC 37. This decision clarifies the law on when retroactive child support may be ordered and how far back such orders should take effect. The logic underlying the court's decision is this. Before the Child Support Guidelines came into effect, child support was determined using budgets and a means-and-needs analysis. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty was to pay support in the amount required for his or her income, using the tables attached to the Guidelines rather than budgets. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis. To put the court's judgment — which is written is very readable, plain language — into a nutshell, this is what the court had to say... The Rationale for Retroactive Support
When Retroactive Child Support Should be Ordered: when there is an existing order
When Retroactive Child Support Should be Ordered: when there is an existing agreement
When Retroactive Child Support Should be Ordered: when there is no order
Factors in Making Retroactive Child Support Awards
How Far Back Child Support Awards should be Retroactive
How Much Retroactive Child Support should be Ordered
To boil things down even further, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if his or financial circumstances change following the making of an order or agrement dealing with child support. In making such an order, the court must consider:
If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor’s conduct is blameworthy, then the support should be retroactive to the date of the change in the payor’s financial circumstances. In the author's view, this decision greatly simplifies the availability of retroactive child support orders, but at the same puts new limits on the amount that can be awarded and how far back in time such awards can reach. All payors, it seems, should voluntarily start paying the amount of child support appropriate to their income levels — bearing in mind that there are new tables in place as of 1 May 2006 which generally require more support to be paid than the old tables — or they face the unwelcome prospect of having to make a lump sum payment equal to the difference between what they were paying and what they should have been paying. The full text of the court's decision is available at: scc.lexum.umontreal.ca/en/2006/2006scc37/2006scc37.html A helpful child support calculator is available in the "Child Support" section of this website. Back to the top of the page. Dugald Christie Dead: Dugald Christie, a Vancouver-based poverty law lawyer and activist, was killed on 31 July 2006 outside of Sault Ste. Marie, Ontario. Mr. Christie was bicycling from Vancouver to Ottawa to raise awareness about the underfunding of legal aid. Mr. Christie had devoted a significant portion of his legal career to serving the needs of low-income persons who would not otherwise be able to afford to hire a lawyer. Mr. Christie's deeply held belief that everyone should be able to access the legal system, led him to found the Western Canada Access Justice Society, which recruited lawyers to establish free legal clinics in many communities across British Columbia. Mr. Christie was also the driving force in the law suit to have the provincial sales tax charged on lawyers' fees declared unconstitutional as a barrier to accessible justice. Mr. Christie was successful in the battle in the Supreme Court of British Columbia, and won again in the Court of Appeal. That case is pending appeal by the provincial government in the Supreme Court of Canada. Mr. Christie's loss is a blow to the legal profession shared by all those whose lives he touched in his relentless drive to make justice accessible to all. Mr. Christie was 65 when he was struck by a van exiting a passing lane on the Trans-Canada Highway. Back to the top of the page. Midnight Marriages No More: The Canadian Press has reported on a tragic blow to the inebriated and romantic: the City of Las Vegas has announced new hours for its formerly all-night wedding bureau. In a cost-cutting move, the wedding bureau — a necessary first stop for lovebirds, since the bureau issues the licences required by the Elvis impersonators to solemnize their nuptials — will only open from 8:00am to midnight, seven days a week, including holidays. Related Articles: 2005 Archives > Sometimes Things Happen in Vegas that Don't Stay in Vegas Back to the top of the page. The Pope Speaks Out (Part 8): Today, CBC reports that Pope Benedict has "lashed out" at Canada for certain solical policies, including same-sex marriage, in speaking to a group of Catholic bishops from Ontario. Said the Pope, "in the name of tolerance, your country has had to endure the folly of the redefinition of spouse," complaining that weak Catholic politicians had allowed "ephemeral social trends and the spurious demands of opinion polls" to sway them from their duty. A few days ago, the Globe & Mail published a rather insightful opinion piece that discussed the clash between social values that encourage tolerance, acceptance and community against the values of extremist religions — whether Christian, Jewish or Muslim — which discourage tolerance, acceptance and community. For example, the full emancipation of women is a generally held social value not shared by extremist religions which see women as subservient "helpmeets" to their husbands, who should not be allowed to vote or otherwise participate in civil society, and who should remain covered from head to toe. The Globe article argued that perhaps social tolerance should not be extended to religious groups whose core values are in direct opposition to broader social values of inclusion and equality. Respect must be granted to the individual's right to freedom of religion, but why on earth should the same tolerance and respect be extended to religious institutions whose values are bigotted, homophobic or sexist? The Pope is right, in a sense. Tolerance is what allowed Canada to extend to gays and lesbians the same rights that their straight counterparts have enjoyed for centuries. Back to the top of the page. No Fall Sitting for BC Legislature: The provincial government has cancelled the fall siting of the legislature. According to Mike de Jong, the Liberal House Leader, a fall session is not necessary as the economy is kicking along quite nicely and the government has no new legislation that needs to be introduced. The legislature will next sit in the spring of 2007, which it must do as that's when the 2007/2008 budget must be tabled. Of course, the legislature doesn't sit just so the government can introduce new bills for debate. When the legislature is in session, individual MLAs can introduce bills that don't have government sanction and, more importantly, the opposition has the opportunity to grill the government and individual ministers over their actions and inactions and hold the government accountable for how the province is being run. Without a sitting, the opposition has no formal means to engage the government in dialogue and exact answers from it. The opposition can stir public debate only through news converences and press releases, and hope that the government has the grace to offer a reply. Back to the top of the page. Misleading Marriage Agreement Rejected: The Ontario Superior Court rejected a 1996 marriage agreement primarily because of the husband's conduct and deception at the time the agreement was executed. In the recent case of LeVan v. LeVan, the husband presented the wife with a marriage agreement mere weeks before their wedding that would have the effect of excluding his business from the division of assets in the event the marriage collapsed. The wife took the agreement to a lawyer for independent legal advice, and was told that the agreement was unfair. The husband told the wife that the lawyer was "an idiot" and arranged for her to meet with a new lawyer two days before the celebration. The wife signed the agreement. Following separation, the wife learned, for the first time, that her husband was worth $14.6 million when they married and $33.0 million when they broke up in 2003. (During the marriage, the husband paid the wife an allowance out of which she was to pay a significant share of the family debts, so high a share in fact that at one point she cashed out some RRSPs believing that they might lose their home.) In rejecting the marriage agreement, the judge held that the husbant had "deliberately breached his disclosure obligations" and "interfered with the wife's attempts to receive independent legal advice:" "In surrenduring virtually all of her rights and agreement to contract out of the provisions of the Family Law Act, [the wife] did so without any meaningful information about the husband's assets and income, coupled with seriously misleading information about his net worth." What's the moral of this story? If you want your marriage agreement to last, not only must be be reasonably fair at the end of the relationship, you must make proper disclosure at the beginning of the relationship. Back to the top of the page. September News Roundup! September has been a busy month in family law, both in terms of new developments in the law and the author's workload. As a result of the latter, updates to this page have lagged and a backlog of news items has built up. This is the discharge of that backlog. The Spousal Support Advisory Guidelines: Stein v. Stein, 2006 BCCA 391 Readers will recall the surprising July case of Redpath v. Redpath, reported above, in which the Court of Appeal held that a failure to consider the Spousal Support Advisory Guidelines at trial was an appealable error, thereby giving the Advisory Guidelines almost the effect of law. A second Court of Appeal decision, Stein v. Stein, was released in early September to the same effect. In this case, the trial judge awarded the wife spousal support in the amount of $2,500 per month for 42 months, which she thought was too low and too short. On the appeal, the wife argued that the spousal support award did not meed the objectives for an award of spousal support as set out in s. 15.2 of the Divorce Act and did not properly account for the length of their relationship, the income disparity between them and the fact that she had not worked outside the home since 1992. After a glancing reference to Redpath and Yemchuk v. Yemchuk, the first Court of Appeal decision to apply the Advisory Guidelines, the court agreed with the wife and awarded her suport in the amount of $4,200 per month — the midpoint of the range suggested by the Advisory Guidelines — to be reviewed in December 2008. The Spousal Support Advisory Guidelines: Discussion paper released In June 2006, the authors of the Advisory Guidelines, Professors Rogerson and Thompson, released a draft discussion paper summarizing some of the feedback they have received about the Advisory Guidelines since its release in January 2005. After the discussion of Yemchuk and Stein above, it is impossible to resist quoting from the introduction to the paper: "When the Advisory Guidelines was first released, we emphasised that they were a 'draft proposal', ready to be applied immediately, but to be revised based upon their use by family law practitioners." In any event, the authors identify a number of areas where adjustment to the Advisory Guidelines is possible, incuding the following:
Interestingly, none of the issues identified in the discussion paper address the concerns raised by the author of this website regarding the complexity of the "with children" formula. See the chapter "Spousal Support > The Advisory Guidelines" for more information on this point. Tie Domi's Divorce To be absolutely frank, I could care less about Tie Domi's divorce. What is interesting is a report from the Toronto Star which discusses certain claims made by Ms. Domi in her court materials: "She also alleges that the former Toronto Maple Leaf player told her if she did not hire a lawyer he would give her $1 million in cash and a $1.5 million home. If she contacted a lawyer, however, 'I would get nothing'." Regardless of whether this is true, I get reports of spouses making this sort of threat all the time. These are ugly and juvenile threats that really need to stop.
If you are the spouse making the threats, stop it. If you are the spouse receiving the threats, ignore it and see a lawyer. First Nations Property Rights The CBC has reported that the federal government is beginning a consultation process to address one of the most significant problems when status Indians divorce, and bring some measure of equality between Native and non-Native property settlements in family law cases. The problem is this. For constitutional reasons, the rules made by the federal government trump the rules made by the provincial governments. The federal government, through the Indian Act, decides how property is owned on First Nations reserve lands. When married couples separate, however, it is provincial laws which determine how property is divided. Because federal rules trump provincial rules, this means that the provincial laws about dividing family assets don't apply to property on reserve lands, and the Indian Act is silent on the subject. According to the CBC, the federal government will be consulting with the Native Women's Association of Canada and the Assembly of First Nations to figure out how matrimonial property laws might apply to reserve lands property. The president of the NWAC is paraphrased as saying that "the absence of matrimonial property laws has created great hardship for aboriginal women, usually forcing them and their children to leave reserves or move in with family members." Ontario to Examine all Deaths Occurring during Access Visits In a rather disturbing development, the government of Ontario has announced that it will conduct a coroner's inquest whenever a child dies during a court-ordered access visit with a parent. This follows the stabbing death of one child, and the falling death of another child, who fell out of a window while his father was drunk. The intention behind the law is reasonable, I suppose, however failing to also require coroner's inquests when a child dies while in the care of the parent with primary residence implies that "access parents" are more of a hazard to children that parents with primary residence, and are somehow less capable of caring for children. In the author's view, drawing this sort of distinction between parents and implying that access parents are a danger to children is really rather offensive. The death of a child is always a tragedy. Absent some a very convincing statistical analysis, it is nonetheless patently discriminatory to imply that parents seeing children as a result of an access order are more likely to cause fatal harm to children than the parents with whom those children live most often. This decision will only inflame access disputes and give neurotic and combative parents yet another weapon to carry on the court battle. Three Parents? A case is being brought before the Ontario Court of Appeal for a declaration that the appellant is a child's third parent. The appellant is the lesbian partner of the child's biological mother. Since the child's biological father is known and paternity is acknowledged, the appellant would become the child's third parent if her appeal succeeds. In British Columbia, standard practice is to apply for a declaration of parenthood and an order requiring the Director of the Vital Statistics Agency to enter the biological parent and his or her partner as the child's two parents. Cases like these usually arise when a couple, whether of the same or opposite genders, must use a surrogate parenting technique in order to have children. The donor of the genetic material or the women who carries the child to birth may bear no relation to the people applying for a declaration of parenthood. Either way, the result in this province is that the child only has two parents, and the third party whose assistance was required to conceive or bear the child has no legal relationship to the child. Back to the top of the page. StatsCan Releases New Family Studies: Statistics Canada has released two new studies on the family, one on domestic violence and another on interfaith marriages. The study on domestic violence found that incidents of spousal abuse continued to drop from previous findings in 1999 and 1993, but aboriginal women, women under the age of 25 and women in common-law relationships continued to be at highest risk of abuse. More disturbingly, the study also examined the incidences of abuse occurring in view of children, and found that children had witnessed the abuse in 40% of reported cases: 258,000 children witnessed an assault against their mothers by their fathers, and 136,000 witnessed an assault against their fathers by their mothers. The study on interreligious marriages found that 19% of married Canadians in 2001 were married to someone of a different faith, up 15% from the 1981 census results. (Interestingly, the same study found that the number of people reporting no religious affiliation had increased from 7% to 17% in the same period.) Back to the top of the page. Supreme Court of Canada to Hear Appeal about Jewish Get: BACKGROUND: For many people, religious law coexists with the civil law. The civil law is the law of the land, the law that binds everyone, regardless of race, creed or culture. Some religions have a codified law of their own, binding only on their adherents. For Muslims, sharia law may be applied by an Imam to resolve a dispute. For orthodox Jews, disputes can be resolved before a special Rabbinical court called the Beth Din. Sometimes civil law and religious law appear to conflict. Sharia law, for example, applies certain rules that are at odds with women's rights under the Charter of Rights and Freedoms. For orthodox Jews, a civil divorce — a divorce granted by a judge — may not suffice. They may also need to get a religious divorce, a "get," in order to be free to marry again under Jewish religious law. On 5 December 2006, the Supreme Court of Canada will hear the case of Bruker v. Marcovitz, an appeal out of Quebec. In this case, the husband agreed to appear before the local rabbinical court to obtain a get as a part of the settlement of the issues arising from the breakdown of the parties' marriage. After the civil proceedings came to an end, however, he refused to give his consent to the get, a requirement under Jewish law to obtain a get. Nine years later, in 1989, the wife sued him for $500,000 in damages, claiming that the husband's delays had ruined her chances of remarrying and having children in a new marriage. At trial, the court held that while it had no jurisdiction to force the husband to consent to the get under religious law, it should award the wife damages of $47,500 under civil law for the husband's breach of contract in failing to abide by the settlement. The husband appealed that decision to the Quebec Court of Appeal, which held that as the husband's obligation under the settlement was purely religious in nature, the civil courts could not have even entertained the wife's lawsuit in the first place. It was not, the court held, appropriate for a civil court to decide on a matter of religious conscience and impose a civil duty to perform a religious obligation. It is the wife's appeal of this decision which will be before the Supreme Court of Canada this winter. Back to the top of the page. The Burden of Proof in Child Abuse Claims: BACKGROUND: The phrase "burden of proof" refers to the test, or onus, someone must meet to prove a fact in court. In criminal matters, the burden of proof is proof "beyond a reasonable doubt." In ordinary civil matters, the test is proof "on the balance of probabilities." Think of proof beyond a reasonable doubt as having to go 95% of the way to establishing guilt, and proof on the balance of probabilities as having to go 55% of the way to establishing liability. The burden of proof is higher in criminal matters than civil matters because of the harsh consequences to an accused person of a wrongful conviction. In certain circumstances, primarily relating to child protection, the burden of proof is much lower. A social worker from the Ministry for Children and Family Development might only have to prove that there is a "reasonable belief" that a child might be harmed for the court to act, rather than proving that the child is likely to suffer harm on the balance of probabilities. In situations like that, the burden of proof is almost reversed. The government, in this example, only has to go 5% of the way to establishing a likelihood of harm, almost the opposite of proof beyond a reasonable doubt. Why is the burden of proof reversed? Because of the importance society places on protecting children. Even a whiff of potential harm deserves our attention and the utmost effort to safeguard a child, even if the claim ultimately proves to be false. In the recent case of L.D.D. v. G.C.D., 2006 BCSC 1499, the court had to deal with some fairly nasty claims concerning the father's alleged sexual touching of the children, in the context of a battle over joint versus sole custody and the nature and extent of the father's time with the children. On top of this, the mother claimed that the father viewed pornography, had a number of extramarital affairs, kept medication and dangerous chemicals in the home, and had a propensity to lie. Most of which, of course, the father denied. Apart from the sheer distaste of the allegations advanced by the mother and other issues which do not bear going into, L.D.D. is noteworthy for its discussion of the appropriate burden of proof when claims are made about children's safety as a result of the alleged misconduct of a parent. The court quoted and applied the test described in M.(P.A.) v. M.(A.P.), a 1991 decision of the British Columbia Supreme Court: "[T]he appropriate test is not that sexual misconduct, or the absence thereof, must be established on the balance of probabilities, but rather I must assess on all of the evidence if there arises a real risk to the child if the [parent] were to be granted custody or unsupervised access. Even if I am not satisfied on the balance of probabilities that sexual abuse has occurred, I must go on to consider if, nevertheless, there is a real risk that it has occurred, and thus might occur again in the future." In other words, the court must not only decide whether the act did or did not occur but whether there was a chance that the act occurred and therefore might occur again. The court in L.D.D. elaborated on this point, confirming that the burden of proof is lower than a balance of probabilities because: "What is at stake is the best interests of the children — not the effect of my findings on the Defendant or the Plaintiff. ... [E]ven though I am not satisfied on a balance of probabilities that the sexual touching occured, I must ask myself whether there is any real risk that if occurred, and whether or not there is any real risk of it re-occurring in the future." In this case, the court was convinced by the father's denial of any misconduct, and found his denials to be consistent with all of the other evidence. As the mother's claims "did not rise above the level of disturbing allegations," the court allowed the father joint guardianship and unsupervised time with his children, but gave sole custody to the mother. In the author's view, false claims of child sexual and physical abuse are increasingly commonplace, especially in high-conflict cases. Such claims are more likely than not to be false and to be borne of either the heightened conflict between the parents and a desire to win at all costs, or the complete breakdown of trust and one parent's neurotic fears about the children's well-being. The court is justifiably cautious when dealing with such claims, however it must be sensitive to the profound consequences such claims can have for falsely accused parents who risk prolonged absences from their children's lives as a result of the simple assertion of the allegation, not to mention the profound social stigma surrounding such allegations, even those that are utterly false and baseless. Ultimately, the test prescribed in M.(P.A.) and applied in L.D.D. is correct, but all claims of the sexual or physical abuse of children should be subject to a proper psychiatric analysis as to the truth of those claims as soon as humanly possible to minimize the damage to the child and to the accused parent in the event the allegations prove false. Back to the top of the page. Number of Grandparent/Grandchild Families Increasing: Today's Globe and Mail reports that an unidentified study has shown that the number of Canadian grandparents raising children under the age of 18 has increased by 20% between 1991 and 2001. According to the paper, although "the trend is evident across all ethnic groups, research shows that Canada's native population is the most represented." Back to the top of the page. Mother who Abducted own Children Pleads Guilty: Nathalie Gettliffe-Grant was charged with abducting her two children by taking the children to live with her France in 2001 after a British Columbia court had given her former husband, Scott Grant, custody and then refused her request to take her children on a visit to France. This led Mr. Grant to commence procedings under Hague Convention on the Civil Aspects of International Child Abduction, and secure the return of the children from the French authorities in February 2006 Ms. Gettliffe-Grant was arrested at the Vancouver airport in May 2006 when she returned to the country to defend her doctoral thesis at UBC. Today, she pled guilty to abduction charges. Sentencing is set to being next week. The maximum sentence the court can impose is incarceration for 10 years, but Ms. Gettliffe-Grant is unlikely to face that much jail time. Related Articles: 2006 Archives > Woman Jailed in Abduction Case Back to the top of the page. Legal Aid Increases Family Law Services: BACKGROUND: In May 2002, the Campbell government slashed funding for the Legal Services Society, the non-profit agency that provides legal aid in British Columbia. Of all the services LSS offered, legal aid for family law matters was hurt the most. Following the funding cuts, help was only available to people who met LSS' income criteria whose problems included domestic violence or child abduction. LSS has since increased its services through, for example, the duty counsel project and adjustments to the income criteria, but the increases have been and remain modest. LSS continues to be underfunded by the provincial government. On 30 October 2006, LSS published a news release (PDF format) announcing expanded services for people involved in a family law dispute. These expanded services are now in effect. LSS' approach to family law services is now "discrectionary and staged." In other words, while emergency services will remain available for people who meet LSS' income criteria, further services will be available on a piecemeal basis at the discretion of LSS, with no guarantee that funding will be provided to see a case through from start to finish. Here are some of the highlights from the news release:
Update: The author has recently learned that LSS is looking into a couple of other initiatives. First, LSS will be unveiling a new family law website on 29 November 2006. The website will feature a service allowing users to ask limited legal questions by email. LSS is, apparently, well aware of the extended delays most people face when calling the Law Line. The new email service will be at least a partial replacement of a similar service offered by this website between November 2001 and February 2006. Second, the reason why the author had to discontinue this website's question and answer service had to do with conflicts and the malicious conduct of a single user. "Conflicts" refers to the basic rule that a lawyer may not act for act for persons with competing interests to those of a lawyer's client. The common interpretation of the Law Society of British Columbia's conflicts rules extends this prohibition to giving legal advice to such persons, even on an anonymous basis, in a clinic setting or when the lawyer is acting as duty counsel. The LSS is discussing with the Law Society the possibility of modifying the Society's conflicts rules to allow a lawyer to give advice and act as duty counsel without first performing a comprehensive conflicts check, as is allowed in certain US jurisdictions. If the LSS is successful, this will allow lawyers to offer legal advice over the internet, by telephone and at legal clinics, with no duty to refuse to give the advice unless the lawyer becomes aware of a conflict. This is, in the author's view, a fantastic proposal that would give lawyers much more freedom to provide pro bono assistance in a wider variety of circumstances. The rules on conflicts should bend, to this limited extent, in the interests of providing accessible legal information. Related Articles: 2005 Archives > Legal Aid Offers New Services Back to the top of the page. The Financial Consequences of Misconduct in Litigation: BACKGROUND: In matters before the Supreme Court and Court of Appeal, lawyers will routinely ask for their clients' "costs" of a proceeding. The court may award "costs" to the party which at the end of the day has been the most successful, as a way of partially indemnifying them for the legal fees they racked up. Costs are a a bit of an idiot tax, and work to punish the unsuccessful party: if the person bringing the action gets his or her costs, the defendant was an idiot for defending the claim instead of reaching a settlement before trial; if the person defending the action gets costs, the plaintiff was an idiot for having brought a bad claim in the first place. Someone who is awarded their costs does not have his or her lawyer's bill paid for by the other party. In general, "costs" work out to be between 25 and 40% of the lawyer's bill. Sometimes, however, the court may order that an increased amount be paid as costs, either as "special costs" (more than usual costs) or as "costs on a solicitor-client basis" (costs in the amount of the lawyer's bill). The court rarely orders that anything more than the usual amount of costs be paid, if it makes an order for costs at all. When it does so, it's usually because the conduct of one of the parties is worthy of reproach. The Supreme Court rule on costs is Rule 37. Kim v. Kim, 2006 BCSC 1508 In this case, the husband's income was the major issue as it related to the amounts he would have to pay in child support and spousal support. The husband, a real estate agent, claimed that his income was $60,000. The wife said that his income should be imputed to be $90,000 per year as he had improperly claimed expenses to minimize his reported income. The wife succeeded on this point. After trial, the wife sought her increased costs of the proceeding, largely on the basis of the husband's conduct following separation and during the course of the litigation. The court agreed, and ordered that the husband pay special costs, for three main reasons:
The trial judgment is reported at 2006 BCSC 1330. Cabaniss v. Cabaniss, 2006 BCSC 1522 In this case, the wife had obtained judgment against the husband in Virginia. The wife then sued in British Columbia under the Foreign Money Claims Act for an order in this province on the terms of the Virginia judgment, to allow her to enforce the judgment against her husband who lived here, in British Columbia. The husband fought the wife's claim in British Columbia, alleging that the Virginia judgment had been obtained improperly. As the judge described things, "the fraud was alleged not only against the plaintiff, but against witnesses who appeared on her behalf and her lawyers. These are allegations of the most serious kind and, as I stated, were without substance." The court gave the wife her special costs of the British Columbia proceedings as a result of the husband's position: "the assertion of groundless allegations of fraud against the plaintiff, her witnesses and her lawyers constitutes reprehensible conduct that is worthy of rebuke by an order for special costs." The husband would not have punished the husband this way if, of course, his claims had been proven. Back to the top of the page. Mother who Abducted own Children earns Rebuke from Court: Users will recall the case of Nathalie Gettliffe-Grant, who recently pled guilty to the criminal charge of abducting her children in 2001 after a British Columbia court had given her former husband, Scott Grant, custody. Ms. Gettliffe-Grant, presently in jail awaiting sentencing, applied for access to the children while in custody. The application was heard on 14 November 2006, and while Ms. Gettliffe-Grant succeeded in obtaining an order giving her biweekly two-hour supervised visits in the prison cafeteria, the court took the opportunity to chastise Ms. Gettliffe-Grant's behaviour. According to the Globe and Mail, the court found that:
The court include in the access order a provision restraining Ms. Gettliffe-Grant from making adverse comments about Mr. Grant to the children. The Globe also reported that, outside of court, Ms. Gettliffe-Grant's lawyer ominously commented that the children, now 11 and 13, were getting close to the ages at which they could decide for themselves with whom they will live. Related Articles: 2006 Archives > Woman Jailed in Abduction Case Back to the top of the page. Law Society Votes to Fund Pro Bono Initiatives: The author has learned that on 10 November 2006 the Benchers of the Law Society of British Columbia, the legal profession's governing body, accepted the recommendations of the Law Society's Pro Bono Funding Task Force and voted to fund pro bono legal services. 1% of lawyers' annual Law Society membership fees will now be diverted to the Law Foundation, which will then be responsible for disbursing the funds to organizations like the Access Justice Society, the Salvation Army's pro bono program, and Pro Bono Law British Columbia. The author has also learned that the vote passed by a remarkable margin of 23-2, and that the two Benchers who voted against the resolution voted against it because they felt that 1% was not enough. Here's the math. There are currently 9,733 practicing members of the Law Society. If the money is drawn from the annual practice fee of $1,065, $103,656 will be generated. If the money is drawn from that part of the annual practice fee designated as the "general fund" fee ($825), $80,297 will be generated. In the author's view, this is a terribly significant development and represents a real commitment on the part of the Benchers, and the Law Society as a whole, to properly funding much-needed pro bono services. With all due respect, as far as the amount of funds being diverted to fund these services, the author tends to side with the two dissenting Benchers. Back to the top of the page. Isreal's High Court Recognizes Same-Sex Canadian Marriages: The CBC has reported on a new decision of Isreal's high court which gives same-sex marriages performed in Canada the same status as any other marriage performed outside of Isreal. The five couples who made the appeal now have the right to register their marriages in Isreal, giving them an equal entitlement to all rights held by married couples in the country, including the right to adopt. Back to the top of the page. Legal Services Society Unveils New Family Law Website: Today the Legal Services Society, the people who run legal aid in British Columbia, officially launched its new family law website. The new website was five years in the making and features a brand new design and a boatload of helpful new resources. The overhaul and ongoing costs are partly funded by the Law Foundation. The website, www.familylaw.lss.bc.ca, is written in plain language and offers a large selection of self-help guides, fact sheets, videos about family law topics, definitions and court forms, groups in categories like "adoption," "custody and access" and "spousal support." It also offers bundles of do-it-yourself kits for things like getting a divorce or applying for child support. It appears that the author's website will soon be redundant! Back to the top of the page. Man Who Tried to Kill Wife Ordered to Pay Spousal Support: The Globe and Mail has reported on a most peculiar case out of Ontario. Ronald Schulz was in jail for attempting to murder his ex-wife, Sheryl Janssen, he attempted to escape his spousal support obligation on the ground that, being in jail, he had no income. At the time of his application, he was in arrears of about $20,000. For most payors, a drop in income will often suffice to have a spousal support obligation reduced, sometimes even cancelled altogether. However, the drop in income must be long-lasting and have occurred through no fault of the payor. In Mr. Schulz's case, he was most certainly the author of his own misfortune and the court was not prepared to let him off the hook. (Making matters worse, Mr. Schulz had also been caught trying to hide his share of the sale proceeds of the former family home.) According to the Globe, the judge said that: "The court is faced not simply with bad faith conduct, but with conduct of the most egregious and despicable character. It is an enormous understatement to say in these circumstances that Mr. Schulz's behaviour ... was merely unreasonable. It was, frankly, quite outrageous." Mr. Schulz's application to terminate his spousal support obligation was denied. As he was, in fact, without income, he was orded to transfer to his wife almost everything he owned, $121,000 remaining of his share of the sale proceeds and his RRSPs, to meet his obligation as a lump-sum payment. Back to the top of the page. Sentencing in Gettliffe-Grant Case: CBC News reports that Natalie Getliffe-Grant, the woman who abducted her children to France in the face of an order giving custody to the children's father, has finally been sentenced on two counts of the criminal offence of child abduction. The court sentenced Ms.Gettliffe-Grant to 16 months in jail and 3 years' probation on her release. When the time she has already spent in cells awaiting sentencing is taken into account, Ms. Gettliffe-Grant will be incarcerated for a further 6 months. The judge chastized Ms. Gettliffe-Grant for her widely reported comments to French television that if she had the chance to take her children away again she would. Related Articles: 2006 Archives > Woman Jailed in Abduction Case Back to the top of the page. MPs Throw Out Motion to Reconsider Same-Sex Marriage: The Conservative government's long-awaited motion asking Parliament to consider reopening the same-sex marriage debate, introduced yesterday, has been defeated by a significant majority. The Conservatives and Liberals allowed their MPs a free vote (they could vote according to their consciences), but Bloc and NDP MPs were whipped (they were told by their party how to vote). Interestingly, the margin by which this motion was defeated was far larger than the margin by which the Civil Marriage Act was passed in 2005 Prime Minister Harper had promised to reopen the debate as a key part of his election platform earlier this year, thus fulfilling an election promise and hopefully laying the issue to rest for good. The CBC quotes Harper as saying "I don't see reopening this question in the future." Readers may speculate as to why Harper insisted on bringing the motion forward, despite polls indicating that the motion would fail. The result is, nevertheless, good for Canada and good for the thousands of gays and lesbians who have tied the knot since 2005. Voter Alert If you're a Liberal voter and a fan of that party's bland and centrist yet inoffensive social policies, you may want to rethink your support for the following Liberal MPs who voted in favour of the Conservative government's motion: Raymond Bonin If you've been tempted to vote Conservative but been put off by that party's regressive and troglodytic social policies, you might want to look into these folks who voted against the government's motion: John Baird, Treasury Board President Back to the top of the page. New Guidelines for Courts on Unrepresented Litigants: Today the Canadian Judicial Council, the organization responsible for maintaining and improving the administration of Canadian courts (and disciplining errant judges), issued a 12-page statement of principles intended to help judges deal with litigants who are not represented by lawyers. Here are some of the highlights:
Click here to read the CJC's press release. The statement of principles is available in PDF format at: www.cjc-ccm.gc.ca/cmslib/general/Final-Statement-of-Principles-SRL.pdf Back to the top of the page. Mom, Dad ...and Mom: Yesterday, the Ontario Court of Appeal ruled that a child can have three people registered as birth parents, in this case a boy's mother, her same-sex partner, and the child's biological father. The ruling is significant as most provincial vital statistics offices will only allow two people to be registered as a child's legal parents. Here in British Columbia we have usually had to apply to court to register non-biological parents as a child's legal parents. (Non-biological parents in this context typically includes same-sex and straight parents who must conceive using assisted reproduction techniques.) If the application is successful, the Vital Statistics Agency is ordered to list the legal parents on the child's birth certificate in the place of the donor or donors of the child's genetic material. In situations like this the legal parents usually envision a traditional nuclear family unit and expect to be recognized as the only parents of their child; the donor or donors of the genetic material are expected to play no role in the child's life. In the Ontario case, however, the child's father, who had donated his sperm to the child's mothers, maintained a role in the child's life along with the mothers, with their consent and approval. In fact, the mothers never applied to adopt the child, which is what is usually done, because they didn't want the father to lose his status with respect to the child. (Adoption strips a parent of all rights and obligations he or she has to a child, as if he or she were a stranger to the child.) The court held that the Ontario legislation on parentage was out of touch with contemporary society, and held that all three people involved in the child's life should be recognized as the child's legal parents. The effect of the judgment gives each mother and the father the ability to make decisions about the care of the child, such as emergency medical decisions for example, with the full status of a legal parent of the child. Author's Comment: From a British Columbia perspective, this decision is in fact a landmark judgment. It recognizes a contemporary social reality and can be used as authority for the proposition that a child can have more than two parents. Our law in this province recognizes that more than one man and more than one woman may have a meaningful parenting role in a child's life. As far as legal parenthood is concerned, our law also recognizes that parenthood can transcend gender: in place of a mom and a dad, a child can have two moms or two dads. Our law does not yet extend to recognizing more than two people as legal parents, and this has more to do with the Vital Statistics Act than it does with the Family Relations Act. The Ontario case can be used as authority in British Columbia for the formal recognition of more than two persons as the legal parents of a child, and the formal registration of all parents on the child's birth certificate. This will give each legal parent the authority to make decisions with all third parties involved in the care and control of the child. Be cautioned, however, the Ontario judgment is not law in this province. A court in this province must first accept and apply the principles of this judgment before the Vital Statistics Agency will be compelled to register more than two people as a child's parents. Related Articles: Current Items > September News Roundup! Back to the top of the page. Overview of Canadian Support Enforcement: The federal Department of Justice has posted a helpful overview of Canadian child and spousal support enforcement mechanisms on its website. The review covers support orders under the Divorce Act, provincial legislation, the Interjurisdictional Support Orders Act and the Hague Convention on Private International Law. The overview is available at: justice.gc.ca/en/ps/sup/enforcement/enforcement_overview.html Back to the top of the page. The Pope Speaks Out (Part 8): On Sunday, Pope Benedict XVI issued an urgent call for Vatican judges to get tough on marriage annulments, citing a critical and almost unprecedented increase in the number of annulments issued by the Catholic courts. According to the Pope, a record 69 annulments were granted in 2005 alone. We applaud the Pope's efforts to stamp out this insidious and immoral plague. Woe unto thee, evildoers; verily, thy loveless, miserable marriages shall endure until the sun becomes black as sackcloth of hair and the moon becomes as blood. Thankfully, the Pope's judgment does not effect the heathen civil courts, which continue to pump out divorces at record rates. Back to the top of the page. The Spousal Support Advisory Guidelines in British Columbia: BACKGROUND: The draft proposed Spousal Support Advisory Guidelines is a paper released in January 2005 by a working group of academics hired by the federal Department of Justice to examine the possibility of creating a mathematical formula which could be used to standardize awards of spousal support in Canada, which is exactly what the paper proposes. The Advisory Guidelines is not law nor does the Department of Justice intend to give it regulatory effect. Nevertheless, courts across Canada have cottoned to the Advisory Guidelines and indicated their approval. The courts of British Columbia are no exception. The Supreme Court of British Columbia has released judgment in the case of D.R.M. v. R.B.M., 2006 BCSC 1921. In this case, the Honourable Madam Justice Martinson summarizes the present state of the law in British Columbia on the Spousal Support Advisory Guidelines:
This judgment is very helpful for its extensive review on the major cases that have considered the Advisory Guidelines since its release more than two years ago. Related Articles: Numerous news items have been previously posted on this website about the Spousal Support Advisory Guidelines. See above this page and the News Archives beginning in 2005. Back to the top of the page. Attorney-General Releases First Set of Discussion Papers: On 1 February 2006 the provincial Ministry for the Attorney General announced that it would be undertaking a review of one of the most important statutes governing family law in British Columbia, the Family Relations Act, and was seeking public input. The ministry said at the time that it would be developing discussion papers for further public consultation and discussion before any changes would be made to the act. The first three discussion papers, primarily covering asset issues, have now been released and are available online at: http://www.ag.gov.bc.ca/legislation/ Two more sets of discussion papers are scheduled for release later this year. Additional background information may be found in the May 2005 release of the Family Justice Reform Working Group's landmark paper on the reform of the family justice system, A New Justice System for Families and Children: www.bcjusticereview.org/working_groups/family_justice/final_05_05.pdf Related Articles: 2006 Archives > Family Relations Act Under Review: Attorney General seeks input Back to the top of the page. 2007 News Roundup: First, I have to apologize. At one point I tended this website on a weekly or near-weekly basis. Then, in early 2007, I decided to sell my house, and that meant putting home renovations that might improve my profit on the sale ahead of my website, which generates no profit but still manages to occupy a great deal of my time. Once the place was sold, five months later, I had to plan the move into my new home, and, after that, all of the usual work had to be done straightening out the plumbing, the wiring, the landscaping and so on, and I'm still nowhere close to done. Making matters worse, my practice was crazy busy for the most part of 2007, which really reduced my free time to maintain this site. Anyhow, what it all boils down to is that I just haven't had the time to tend to this website the way I have in the past, and really haven't been able to get around to updating it. I promise that I will try to find the time in 2008. The Family Relations Act Review: All three phases of the Attorney General's review of the FRA have come to a conclusion, and I have been told that the AG's office received abundant comment from every corner of the province. The last public stage of the consultation process will be heard on 10 March 2008, at a special meeting with stakeholders organized to discuss two things: how children's views can be better incorporated in the court process; and, whether family violence should be expressly identified as a factor the judge must consider in assessing children's best interests. After this last meeting, it'll be up to the AG's people to sift through the feedback and decide whether and how to change the FRA. If changes are to be made, they won't become law until the changes have been put before the provincial legislature as a bill, the bill has been voted upon and passed, and the bill receives royal assent. In other words, if changes will be made, it'll be a while yet before they come into effect. The Civil Justice Reform Review: The Civil Justice Reform Working Group released it's draft of some proposed new rules for the Supreme Court sometime in 2007. From a family law perspective, the most important aspect of the new rules was that they aren't to apply to family law matters, and that we'll somehow get our own set of new rules. It isn't clear exactly how the rules will stream family law matters separately from general civil litigation, as the rule defines "actions brought under the Family Relations Act" as the sort of matter to which the rules won't apply, which appears to leave out actions brought under the Divorce Act, thereby making the new family rules mandatory for unmarried couples but optional for married couples. Go figure. New Family Law Rules? I am aware that a group of judges, senior lawyers and others have been working to craft a set of new court rules, which may or may not apply to both the Supreme Court and Provincial Court, but nothing has yet been made public about what the rules will look like, or whether they will conform to the recommendations of the Family Justice Reform Working Group. (Rumour has it that the new rules are not going to meet the Working Group's recommendations, and have in fact been dictated by the AG's office.) I expect that some draft rules will be released for public comment in the next few months. The Nanaimo Hub: Speaking of such things, one of the other recommendations of the Family Justice Reform Working Group called for the creation of "hubs" that would act as "portals" to family justice "services," bringing all of the different government services, public agences and related private agencies (the Parenting After Separation Program and pro bono legal organizations) under one roof. A pilot project "hub" was established in Nanaimo early last year. Folks from the government say it's been wonderful, reports from people not connected with the government aren't so rosy. Anyhow, the hub is underway and has its own website and everything. Check back for status updates; in the meantime, users of the Nanaimo hub are encouraged to contact me through the Feedback section of this website and let me know how they liked it. The draft, proposed Spousal Support Advisory Guidelines: The final draft of the proposed Spousal Support Advisory Guidelines will be released by professors Rogerson and Thompson in the next month. A number of changes are expected to the SSAG, including: getting rid of the $350,000 cap on the payor's income; expanding the opportunities to restructure payments under the SSAG; and, expanding the list of exceptions to the SSAG, including a special exception for British Columbia that will address the effect on spousal support of a reapportionment of the family assets in favour of the recipient of support. In the meantime, the courts have continued to express their admiration for and consequential reliance upon the SSAG. The SSAG is now routinely used to determine spousal support on initial applictions, final applications at trial, and often on review and variation applications, despite the caution in the SSAG itself that it is not to be used for review and variation applications. It is safe to say that the SSAG is now mandatory in British Columbia, and will be applied to determine spousal support in all but the rarest of occasions, despite the fact that the SSAG is an academic paper that has no legal effect and has not been approved by either our legislature or the Canadian parliament. Honestly, this bit of hypocrisy is getting out of control. I really do wish some brave legislator would get it together and propose that the SSAG be given the force of law. Parenting Coordination: The BC Parenting Coordinators Roster officially launched at the end of September 2007, and a few people on the roster have already taken their first cases as parenting coordinators. The roster coordinators continue to organize training opportunities for new people wishing to work as parenting coordinators, the most recent of which was held in early March 2008 with participants coming from Metro Vancouver, Vancouver Island, the Interior and Alberta. Views of the Child Reports: 2007 saw a renewed interest in views of the child reports, a sort of summary, mini report prepared pursuant to s. 15 of the FRA, particularly in the preparation of these reports by non-professionals who may often be able to complete the report faster and more cheaply than psychologists or psychiatrists. The International Institute for Child's Rights and Development finished its Kelowna pilot project in 2007, which saw lawyers and social workers teaming up to prepare "hear the child" reports for use in Provincial Court. According to the IICRD, the project was a fantastic success. The IICRD is now in the process of drafting a training kit desgined to help teach legal and mental health professionals how to interview children for court proceedings, and have already had one consultation with a group of stakeholders from the bench, bar and mental health community. At the same time, judges of the Surrey, Richmond and Vancouver Provincial Courts have continued to be interested in views of the child reports and have been encouraging litigants to hire independent third parties to prepare views of the child reports. (One lawyer I am aware of says he can get such reports out the door within one week and charges flat fees of as little as $500 for his reports. Others will have different rates and different turn around times.) According to some of the judges requesting these reports, they like the speed with which these reports can be generated and appreciate how a neutral statement of the children's preferences can alter the dynamics at case conferences and encourage parents to make more reasonable decisions. Case Law Update: Only two decisions stand out in my mind as a major developments of the law in 2007. Of course there were a basket of decisions from our Court of Appeal praising the Spousal Support Advisory Guidelines and fixing them yet more firmly in the firmanment of British Columbia family law proceedings and principles, but two decisions of the Supreme Court of Canada are really important and do have a significant effect on the practice of family law. Firstly, in a case called DBS v. SRG, which is really a cluster of four cases from Alberta on the same issue all heard and decided at the same time, the court clarified the rules about retroactive child support claims. They are, essentially, these:
Secondly, in a case called Pecore v. Pecore, the court altered some of the legal presumptions about the gifts parents make to their children. This is very complex, so I won't get into too much detail, but essentially, the law used to say that where a parent transfers property to a child, the property should be considered to be a gift (the "presumption of advancement") unless the parent or child can give some documentary proof that the transferred property was actually loaned. Now, the court should consider the property to have been loaned rather than gifted to the child (the "presumption of resulting trust"). The reason why this is important is that parents will often give/loan some money to their adult children, and this typically happens, from a family law perspective, when a child has married and is looking to buy a house and needs some help with the downpayment or the mortgage. When the child's relationship ends,
If the first spouse is successful, the property being shared by the spouses is decreased because they must first repay the parents before the property is divided. If the second spouse is successful, the property being divided is all of the property, and the spouse will get more out of the family assets than if the money was found to be a loan that had to be paid back. This is a complex area of the law. If you think you have a problem involving these issues, you must see a lawyer. Back to the top of the page. Mediation Project Expands: One aspect of the family justice "hub" pilot project in Nanaimo included an option in the Supreme Court which allowed a party trigger a process of mediation, temporarily halting the litigation. This part of the hub project has apparently worked so well that, effective 1 April 2008, the Notice to Mediation Regulation will be expanded to the Duncan and Victoria Supreme Court registries. For more information about the Nanaimo hub, check their website at: www.nanaimo.familyjustice.bc.ca/ Back to the top of the page. Draft Family Rules Released: For the last couple of years, the Attorney General's office has been working on a comprehensive overhaul of civil justice procedures in the province, in two main streams: family law processes and general, non-family civil processes. The family law stream is the Family Justice Reform Working Group, and these are the folks behind the series of discussion papers on potential changes to the Family Relations Act that were released throughout 2007 and the very early part of 2008. One important element of the Civil Justice Reform Working Group's 2005 report called for family law matters to be dealt with under their own rules and court processes. A draft of the court rules proposed for general, non-family civil processes was released in 2007; now, the FJRWG has released a draft of the rules that might apply to gamily law processes for public comment. The background of these projects has been discussed in past articles that you'll find above. For the official horse's mouth background, visit the website of the BC Justice Review Task Force at: www.bcjusticereview.org/working_groups/family_justice/family_justice.asp The draft rules are available at the BCJRF's forum, at: www.bcjusticereviewforum.ca/familyrules/ Be careful about loading the PDF of the draft rules and hitting Print, it's a 158 page document. Back to the top of the page. Site Navigation
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