Breaking News > 2005 Archives

This chapter contains older news items originally published in the first chapter of this section.

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.

Because of the age of some of these news items, links to external sites have been deleted.

Archived Items: 2005

Parent Convicted of Abduction of Child:
Mother took child 15 years ago against order giving father sole custody

15 years ago, Gisele Gouldreault vanished from Red Deer, Alberta with her son just before the court was about to give sole custody to the father. The child was 3 years old at the time.

Gouldreault initially fled to Mexico, and eventually settled in California where she remarried and started a new life. She told her son about his father when he was 9 years old.

Gouldreault was arrested last year and extradited to Canada, after spending four months in an American jail. Yesterday, the Alberta provincial court found her guilty of abduction, knowingly fleeing with the child in the face of a custody order with the intention of depriving the father of the child.

Gouldrealt will be sentenced on 9 February 2005.

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Spousal Support obligations under Sponsorship Agreement distinct from Divorce Act:
British Columbia Supreme Court issues important judgment

In the 2004 case of Aujla v. Aujla, a recently published case from the Supreme Court of British Columbia, the court was asked to consider the impact of a sponsor's obligations to a landed immigrant, his spouse, in the context of her right to receive spousaul support from him under the Divorce Act. Sponsorship agrements are often required by Immigration Canada to allow foreign spouses into the country so that they may eventually obtain permanent resident status. Such agreements require sponsors to promise to provide the basic necessities of life for the immigrant, including things such as food, shelter, clothing, fuel, ultilities and health care.

In Aujla, the Mr. Aujla was a landed immigrant. The parties married in March 2002, and Mr. Aujla signed a sponsorship agreement to allow Ms. Aujla to immigrate to Canada in August 2002. Their marriage ended shortly afterwards, and they separated October 2002.

At trial, Ms. Aujla, who had a two university degrees but was unemployed, sought an order that Mr. Aujla pay spousal support to her based, in part on his promise to support her in the sponsorship agreement: Mr. Aujla had promised to support her in the sponsorship agreement, the court should consider that promise in the family dispute and therefore make an order on the terms of the sponsorship agreement.

The court found that Ms. Aujla was eminently employable and could be expected to become self-sufficient in short order. The court ordered that Mr. Aujla pay support in a relatively modest sum for a short, six-month period.

In considering the effect of the sponsorship agreement Mr. Aujla signed, which is, in the author's view, the important aspect of the case, the court said this:

"I find that the sponsorship agreement does not make a great difference. Mr. Aujla may find that he has obligations to Canada or a province of Canada if Ms. Aujla is unable to support herself and receives social assistance. However, in this case, I am satisfied that the principles of the Divorce Act adequately deal with the issues of maintenance. The real purpose of the sponsorship agreement is not to determine the rights between Mr. and Ms. Aujla, but to determine the rights as it relates to each of them and the governments which may be called upon to support Ms. Aujla."

In other words, Mr. Aujla's obligations under the sponsorship agreement were his obligations with respect to the Government of Canada, entirely separate from his obligation to pay spousal support under the Divorce Act. The promises made in the agreement had no bearing on Ms. Aujla's entitlement, or lack thereof, to receive spousal support under the act.

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Parent Ordered to Pay Child's Medical School Costs:
British Columbia Court of Appeal issues important, and likely one-of-a-kind, judgment

On 10 January 2005, the Court of Appeal issued its reasons in Neufeld v. Neufeld. The father, a medical doctor earning some $170,000 per year, was required to foot half of his 23 year old daughter's bill for attending medical school and to make on-going base child support payments for her and her younger sibling.

This decision is somewhat remarkable, since normally a parent's obligation to support an adult child ends when the child has completed one post-secondary degree or diploma program. Even where a child is going on to higher education it is not at all certain that the child will be entitled to receive support or a contribution to his or her post-secondary expenses.

Part of the court's decision was based on a separation agreement Dr. and Ms. Neufeld executed that put no limits on Dr. Neufeld's liability for post-secondary expenses and child support while the child was in post-secondary studies; part was based on Dr. Neufeld's high income.

In the author's view, this case, which, quite frankly, diverges significantly from the preponderance of the case law dealing with support for adult children, demonstrates that parents with high incomes have a much, much greater exposure to on-going child support obligations for adult children than parents with middle or low incomes. Readers should not assume that they are exposed to a child support obligation beyond one degree or diploma unless they earn a very healthy income; this case is not likely to stand as a precendent for anyone other than high income earners with clumsy separation agreements.

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Lawyer Referral Service Changes Rate:
New, higher rate in effect as of 1 Janaury 2005

As of 1 January 2005, the Canadian Bar Association BC's Lawyer Referral Service has raised it's rates for a half-hour of participating lawyers' time from $10 to $25.

According to the Service's contact faxes, sent to lawyers when a referral has been made, lawyers are to charge $25 plus taxes for one half an hour of their time. When the half hour expires, lawyers are to notify their client. If the client chooses to continue with the session, the lawyer may charge for any additional time at his or her usual hourly rate.

Note that for family lawyers, referrals from the Service are rarely a source of new clients. Since lawyers' hourly range from $150 to $400 per hour, lawyers who accept referrals from the Service generally do so as a form of pro bono work.

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Land Title and Survey Authority opens 20 January 2005:
Operations of Land Title Office and the Surveyor General merged

As of 20 Janaury 2005, the Land Title and Survey Authority will come into existence by virtue of the Land Title and Survey Authority Act. The new agency will provide the same services formerly provided by the Land Title Office.

Contact the LTSA at:

PO Box 9390
Victoria, British Columbia
V8W 9M8
Telephone: 250-952-5021
Fax: 250-387-1830
Web: www.ltsa.ca

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Stephen Harper warns Legalized Polygamy to follow Same-Sex Marriage:
Great earthquake, sun becoming black as sackcloth of hair, moon becoming as blood expected shortly
(Sources: Globe & Mail, 21 January 2005 · Revelation 6:12)

Stephen Harper warned yesterday that the legalization of same-sex marriage will lead to the legalization of polygamy, and that we should therefore use the law to protect "traditional marriage" if we are ever to prevent the legalization of polygamy, erasing all doubt about the old Reform Party's continued influence on the new federal Conservative Party.

Meanwhile, Justice Minister Irwin Cotler went on record as saying that the government can't pick and chose which constitutional equalities it will enforce and which it won't, and that he sees no connection at all between same-sex marriage and polygamy.

In the philosophy of logic, Mr. Harper's views are a form of the "slippery slope argument," in which someone argues that the moral acceptance of a relatively benign thing will lead to the acceptance of a very bad thing. Unfortunately, this type of argument often leads to comparing apples with oranges. It is exactly the same kind of fear-mongering lately heard on the same-sex marriage issue in the United States, where people have actually argued that legalizing same-sex marriage will lead to the legalization of bestiality, if you can believe it.

(Curiously, Mr. Harper's speech comes on the heels of a bizarre episcopal letter issued by Calgary Bishop Fred Henry which lumped homosexuality in with prostitution, pornography and adultery as "evils" which "undermine the foundations of the family [and] the basis of society." Bishop Henry urged the government to use its "coercive powers" to prohibit homosexuality, apparently urging the federal government to ditch the constitution and get back to a good old fashioned totalitarian regime in which the state has the power to force morality upon its constituents. Hello, North Korea?)

Is same-sex marriage the start of a slippery slope leading to mothers marrying sons, women having multiple husbands and people molesting furry bedmates? I think not. As the Globe & Mail put it, in an editorial published on 22 January 2005, same-sex marriage closes the category of marriage. Marriage will remain a union between two people; same-sex marriage merely admits into this category people formerly precluded from it by virtue of their sexual orientation.

Related Articles

2004 Archives > Supreme Court of Canada rules on Government Reference
2004 Archives > The Pope Speaks Out (Part 3)
2003 Archives > Same-Sex Marriage Legalized

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Leave to Appeal Granted in Leskun Case:
Supreme Court of Canada to consider whether spousal misconduct a factor in entitlement to spousal support

On 3 August 2004, the Court of Appeal for British Columbia released its decision in Leskun v. Leskun, and the husband promptly applied for leave to appeal that decision to the highest court in the land, the Supreme Court of Canada. On 21 Janaury 2005, the court agreed to hear the appeal.

The wife's position before the Court of Appeal was that she was entitled to on-going spousal support becasue she so emotionally damaged as a result of her husband's infidelity that she could not return to work and become self-sufficient. The court agreed.

At first glance, this appeared to be a breach of the fundamental principle that the conduct of a spouse during the marriage has no bearing on the other spouse's entitlement to spousal support, which is what got the Vancouver Sun so worked up that it published a front page story on the case a month later, saying that this "no-fault" principle had been struck down.

In the author's view, there was no such breach of the no-fault principle. In Leskun, the wife's impairment could have equally flowed from any one of a number of factors, such as a car accident or the death of a close family member. Instead, the cause of her impairment had its root in the adulterous circumstances under which her marriage came to an end, and the other factors that the court to into consideration, including her health and age.

Related Articles

2004 Archives > Vancouver Sun Wrongly Suggests Demise of "no-fault" Divorce

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Same-Sex Marriage Bill to be Tabled Next Week:
Meanwhile, American Christian group asks Canadians to pray bill fails

Justice Minister Irwin Cotler today announced the federal government's intention to table its long-awaited bill on same-sex marriage in the House of Commons. This is the first step every bill takes on the road to becoming a law.

Also in the news today, Canada Press reports that an American religious right wing group, "Focus on the Family," broadcast a television show exhorting Canadians to pray that the bill won't pass and, of course, to donate to their group. The group's leader, James Dobson, said that same-sex marriage is not a human right, and that allowing same-sex marriage would destroy the institution and undermine society.

The Canadian branch of Mr. Dobson's group is mobilizing its members to combat the scourge of same-sex marriage, and is encouraging them to bombard MPs with letters, faxes, emails and petitions. Their "Marriage Action Kit" is available at www.fotf.ca.

The author, on the other hand, has prepared an "Equality Action Kit" in support of the pending legislation, and says this to Mr. Dobson: It is time to focus on the family.

Focus on the Family

(Feel free to copy and distribute this graphic and the action kit. If you're using Internet Explorer, save the graphic by right-clicking on the image, selecting "Save Picture As..." and then clicking "Save.")

Related Articles

2004 Archives > Supreme Court of Canada rules on Government Reference
2004 Archives > Get Over It, People!
2003 Archives > Same-Sex Marriage Legalized
2004 Archives > Federal Government Moves to Approve Same-Sex Marriage

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Draft Spousal Support Advisory Guidelines Released:
Public comment sought on draft guidelines

Today, Professors Rogerson and Thompson released their Draft Spousal Support Advisory Guidelines to the public. The document is a draft proposal only and is being released for public comment.

The draft can be found as www.justice.gc.ca/en/dept/pub/spousal/project/index.html which has a link to a properly typeset version in Acrobat PDF format. Think twice about popping open the PDF and printing it, though... the draft is about 125 pages long.

Legal Status of the Guidelines

The SSAG will be advisory only, they are not law and are not intended at present to become law.

The SSAG are intended to be used as a reference for lawyers and the courts, as an aid in negotiating and litigating spousal support. The authors recognize that not every case can be fit into the SSAG and that there will inevitably be cases where the results produced by the SSAG won't be appropriate.

The authors anticipate that the SSAG, in their final form, will be adopted to varying degrees by the courts of Canada, whether as a benchmark tool or as an informative reference.

Calculating Spousal Support

The SSAG do not establish entitlement to spousal support. They are only to be used once entitlement to support has been determined.

Under the SSAG, spousal support is calculated by looking at a variety of factors and using different mathemetical formulae that vary depending on whether there are children or not.

The SSAG do not provide a table of spousal support amounts as the Child Support Guidelines do for child support. The results of the different SSAG formulae do not provide a fixed dollar amount. They produce a range of amounts which may or may not be appropriate.

The Objectives of the Guidelines

The authors intended the SSAG to reflect the current outcomes for spousal support but provide a more normative way of determining spousal support. The SSAG are intended to reflect the law on spousal support as it stands now; the SSAG are not meant to revolutionize how the courts deal with spousal support or supplant the current theories of spousal support.

The primary theory underlying the SSAG is the concept of income sharing, which looks at the parties' disposable income as a family unit and then shares the disposable income between the parties. For example, if Party A has $35,000 in disposable income after separation and Party B has $15,000 in disposable income, the SSAG will divide the $50,000 between the parties. The point is to figure our what the parties have as a whole, and then divide that between them.

Income sharing is intended to avoid a budget-based, needs-and-means analysis of support. The preparationof budgets can be expensive, as is the legal argument about whether someone's needs are legitimate and whether the other party is understating their means.

Note that income sharing does not mean equal sharing.

The Forumlae

The SSAG present two primary formulae, one for when there are no children (the "Without Children Formula") and one for when there are dependent children (the "With Children Formula"). Both are very different from each other.

The Without Children Formula is fairly straightforward:

The amount of support is 1.5 to 2 percent of the difference between the parties' gross incomes for each year of marriage.
For example, say a relationship is 10 years long, and Party A has a gross income of $50,000 and Party B has an income of $20,000. The difference between the parties' incomes is $30,000. Party B would have share in the difference of 15 to 20 percent (1.5 times 10 and 2 times 10), or between $4,500 and $6,000 per year. On a monthly basis, support would be paid at $375 to $500.
The length of time support will be paid is .5 to 1 year for each year of the relationship. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.
Using the same example, support would be payable for 5 to 10 years (.5 times 10 and 1 times 10). If, however, the dependent party was 55 at the time of separation, support would be paid indefinitely (55 years of age plus 10 years equals 65).

The factors this forumula uses are:

  1. the payor's gross income;
  2. the recipient's gross income;
  3. the length of time the parties lived together and/or were married; and,
  4. the recipient's age.

The With Children Formula is a lot more complex. In this formula, child support is taken out of the payor's gross income and the recipient's income, taxes are taken into account, and government benefits are added to the recipient's income. The reason why child support is deducted from the recipient's income is to reflect the costs that parent bears in raising the children.

The amount of support is 40 to 46% of the parties total net annual income. The parties net annual income is the payor's individual net disposable income plus the recipient's net disposable income.
The payor's net disposable income is his or her gross income, minus taxes and minus his or her child support obligation.
The recipient's net disposable income is his or her gross income, minus taxs and minus his or her notional child support obligation, plus any government benefits he or she receives.
Say the parties have an 8 year old child, the payor has a gross income of $50,000 and the recipient has an income of $20,000. The payor's net disposable income is $26,710 ($50,000 minus taxes of $15,570, minus annual child support of $5,112, minus EI deductions of $772, minus CPP deductions of $1,831). The recipient's net disposable income is $15,045 ($20,000 minus taxes of $4,410, minus notional child support of $2,052, minus EI deductions of $396, minus CPP deductions of $816, plus child tax benefit of $1,208, plus national child benefit of $1,511).
The family's net disposable income is $41,755 ($26,710 plus $15,045). 40 percent of the net disposable income is $16,702; 46 percent of the income is $19,207. After deducting the recipient's net disposable income, the difference between the recipient's income and 40 percent of the family's disposable income is $1,657 per year, and $4,162 for 46 percent.
On a monthly basis, spousal support would be between $138 and $346. The total the payor would pay each month would be spousal support plus $426 in child support.
The length of time for which support will be paid depends on whether the marriage was short (up to 5 years), medium (5 to 19 years) or long (20 years and more), and on how young the children are.

I told you it was complex. The factors this forumula uses are:

  1. the payor's gross income;
  2. the recipient's gross income;
  3. the length of time the parties lived together and/or were married;
  4. the recipient's age;
  5. the number of children under the age of seven; and,
  6. the number of children seven or older.

Other formulae apply when one or more children live with the payor or if all of the children live with the payor and the recipient is required to pay child support while benefitting from spousal support.

The Future

In the short term, a whole lot of lawyers, mediators and judges are going to be going through this draft of the Spousal Support Advisory Guidelines with a fine-toothed comb. Most family law lawyers will be aware of the existence of the draft, but do not expect most of them to have a thorough working knowledge of the SSAG. Frankly, certain aspects of the SSAG are very, very complicated, and it's going to take awhile for everyone to get up to speed on the different formulate.

The authors are presently seeking the input of the profession and the public. In the long term, the authors will be digesting the feedback they get and tinkering with and refining the SSAG. No release date has been scheduled for the next draft of the SSAG or the final draft of the SSAG, but do not expect one quickly.

Related Articles

2004 Archives > Spousal Support Guidelines status update
2003 Archives > Spousal Support Guidelines?

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Globe & Mail publishes MP Poll on Same-Sex Marriage Bill:
Which MPs will vote yes, which will vote no, and who's undecided

On 1 February 2005, the Globe & Mail published the results of a survey of every Member of Parliament about their voting intentions on the bill that would override the common law definition of marriage to expressly include same-sex couples. This is what the Globe found:

Undecided
 For
 Against
Thibault, BQ Boire, BQ Gaudet, BQ
Desrochers, BQ Andre, BQ Cardin, BQ
LaFramboise, BQ Thibault, BQ Vincent, BQ
Perron, BQ Blais, BQ Cadman, Ind
Loubier, BQ Menard, BQ Chong, Con
Bouchard, BQ Simard, BQ Casson, Con
Asselin, BQ Bellavance, BQ Van Loan, Con
Boulianne, BQ Lessard, BQ Duncan, Con
Moore, Con Marceau, BQ Carrie, Con
Watson, Con Bachand, BQ Anders, Con
Hearn, Con Levesque, BQ Yelich, Con
Prentice, Con Demers, BQ Toews, Con
Hinton, Con Menard, BQ Brown, Con
Penson, Con Sauvageau, BQ Williams, Con
Stronach, Con Bergeron, BQ Finley, Con
Rajotte, Con Lemay, BQ Warawa, Con
Fitzpatrick, Con Brunelle, BQ Bezan, Con
Obhrai, Con Bigras, BQ White, Con
Oda, Con Crete, BQ Trost, Con
Reid, Con LaPierre, BQ Batters, Con
Goodyear, Con Gagnon (Saint Maurice), BQ Thompson (Wild Rose), Con
Keddy, Con Bourgeois, BQ Lunn, Con
Macaulay, Lib St-Hilaire, BQ Mills, Con
Temelkovski, Lib Paquette, BQ Tilson, Con
Phinney, Lib Cote, BQ Allison, Con
St Amand, Lib Poirier-Rivard, BQ Stinson, Con
Smith, Lib Kotto, BQ Tweed, Con
Simms, Lib Plamondon, BQ Solberg, Con
Matthews, Lib Lalonde, BQ Scheer, Con
Karetak-Lundell, Lib Deschamps, BQ Schellenberger, Con
Comuzzi, Lib Lavallee, BQ Casey, Con
Murphy, Lib Faille, BQ Hill, Con
Easter, Lib Guay, BQ Mackay, Con
Rodriguez, Lib Gauthier, BQ Epp, Con
McGuity, Lib Cavet, BQ Guergis, Con
Redman, Lib Bonsant, BQ Kenney, Con
LeBlanc, Lib Gagnon (Jonquiere), BQ Reynolds, Con
Drouin, Lib Guimond, BQ Harper, Con
Byrne, Lib Duceppe, BQ Preston, Con
Thibault, Lib Cleary, BQ Grewal (Fleetwood), Con
Dhalla, Lib Picard, BQ Doyle, Con
Pickard, Lib Carrier, BQ Nicholson, Con
D'Amours, Lib Roy, BQ Poilievre, Con
Carr, Lib Gagnon (Quebec), BQ Richardson, Con
Patry, Lib Moore (Port Moody), Con Mark, Con
Bell, Lib Wasylycia-Leis, NDP Ambrose, Con
Sgro, Lib Martin (Winnipeg), NDP Moore (Fundy Royal), Con
Paradis, Lib Martin (Sault Ste. Marie), NDP Smith, Con
Hubbard, Lib Davies, NDP Johnston, Con
Proulx, Lib Broadbent, NDP Komarnicki, Con
Masse, NDP Day, Con
Christopherson, NDP Miller, Con
Siksay, NDP Sorenson, Con
Layton, NDP Harris, Con
McDonough, NDP Pallister, Con
Comartin, NDP Lukiwski, Con
Angus, NDP Merrifield, Con
Julian, NDP Hanger, Con
Blaikie, NDP Thompson (New Brunswick), Con
Godin, NDP Kramp, Con
Crowder, NDP Lunney, Con
Stoffer, NDP Gouk, Con
Cullen, NDP Anderson, Con
Valley, Lib O'Connor, Con
Wrzesnewskyj, Lib Kamp, Con
Anderson, Lib Gallant, Con
Bevilacqua, Lib Forseth, Con
Brown, Lib Lauzon, Con
Neville, Lib Skelton, Con
Boudria, Lib Jean, Con
Catterall, Lib Cummins, Con
Volpe, Lib Ablonczy, Con
Coderre, Lib Hiebert, Con
Adams, Lib Vellacott, Con
Myers, Lib Chatters, Con
Silva, Lib Jaffer, Con
Efford, Lib Harrison, Con
Ianno, Lib Ritz, Con
Bagnell, Lib Breitkreuz, Con
Cotler, Lib Fletcher, Con
Saada, Lib Benoit, Con
Macklin, Lib Mackenzie, Con
Savage, Lib Devloin, Con
Regan, Lib Grewal (Newton), Con
Folco, Lib Abbott, Con
Rota, Lib Menzies, Con
Guarnieri, Lib Goldring, Con
Owen, Lib Strahl, Con
Mitchell, Lib Schmidt, Con
Bradshaw, Lib Desjarlais, NDP
Barnes, Lib Parrish, Ind
Ratansi, Lib Cannis, Lib
Scott, Lib Savoy, Lib
Blondin-Andrew, Lib Lee, Lib
Telegdi, Lib Malhi, Lib
Powers, Lib Cuzner, Lib
Dion, Lib Scarpaleggia, Lib
Dryden, Lib Ur, Lib
Bakopanos, Lib Wilfert, Lib
Goodale, Lib McKay, Lib
Brison, Lib Cullen, Lib
Lastewka, Lib Khan, Lib
McLennan, Lib Simard, Lib
Kadis, Lib Karygiannis, Lib
Prime Minister Martin, Lib Longfield, Lib
Valeri, Lib McTeague, Lib
Jennings, Lib Szabo, Lib
Holland, Lib Steckle, Lib
LaPierre, Lib Boshcoff, Lib
Belanger, Lib O'Brien, Lib
Godbout, Lib Maloney, Lib
Robillard, Lib Pacetti, Lib
Fontana, Lib Kilgour, Lib
Pettigrew, Lib Bonin, Lib
Dosanjh, Lib Zed, Lib
Peterson, Lib Gallaway, Lib
Emerson, Lib Tonks, Lib
Eyking, Lib Wappel, Lib
Graham, Lib Chamberlain, Lib
Chan, Lib
Martin (Esquimalt), Lib
Alcock, Lib
McCallum, Lib
Marleau, Lib
St Denis, Lib
Boivin, Lib
Carroll, Lib
McGuire, Lib
Torsney, Lib
Bennett, Lib
Fry, Lib
Bains, Lib
Frulla, Lib
Godfrey, Lib
Bulte, Lib
Minna, Lib
Beaumier, Lib
Devillers, Lib
Augustine, Lib

If you're going to lobby anyone, by the way, you'll probably have the most luck with the MPs in the "undecided" column.

Related Articles

2003 Archives > Proposed Same-Sex Marriage Legislation
(Globe & Mail MP poll from August 2003)

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Lawyers' Bills for Low Income Clients now Exempt from PST:
Supreme Court of British Columbia issues important judgment

BACKGROUND: For years, lawyers have been complaining that their accounts were subject to PST as well as GST. Lawyers are the only professional group to whom PST applies, and while past provincial governments have promised that the PST collected would be directed to funding legal aid it never has been put to that use. Instead the PST is directed into the government's general income stream. (The author doubts that any lawyer would complain about PST if it actually went to legal aid.)

Since the law about PST was changed to make lawyers' bills subject to provincial sales tax, the Canadian Bar Association British Columbia and others have brought fruitless law suits to have the change declared unconstitutional. Today one lawyer, Dugald Christie, succeeded.

In the case of Christie v. British Columbia et al., 2005 BCSC 122, Madam Justice Koenigsberg ruled that the Social Services Act — the law that imposes PST on lawyers' bills — is unconstitutional insofar as it applies to low income clients. Her Ladyship defined "low income" according to the standards of the Family Duty Counsel Project of the Legal Services Society.

As of today, PST does not apply to lawyers' bills for clients whose income is below the following thresholds:

  • 4 or fewer family members: net family income of $28,000 per year
  • 5 family members: net family income of $33,000 per year
  • 6 family members: net family income of $35,000 per year
  • 7 or more family members: net family income of $38,000 per year

Mr. Christie is a senior member of the bar whose practice has been primarily devoted to serving the needs of low income clients and various pro bono projects. Mr. Christie is one of the founders of the Western Canada Access Justice Society, and deserves much praise as one of the bar's most dedicated members to serving the public interest and the needs of the less well off. Cheers for Mr. Christie.

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Mother Convicted of Abducting Child gets Jail Time:
Alberta court issues important judgment

BACKGROUND: For the full background of this story see Current News Items > Mother Convicted of Abduction of Child.

Today Gisele Goudreault was sentenced to two months in jail for abducting her child 16 years ago, contrary to a court order which gave custody to the father. The child is now 18 years old.

To clarify matters, the offence Goudreault was convicted of carries a maximum penalty of a fine of $2,000, six months in jail, or both a fine and jail time. While two months may not seem like a lot, it's still one-third of the maximum jail time and the criminal courts are obliged to reserve the maximum penalty for multiple offenders and observe other rules about sentencing which restrict the nature of the penalties the courts can levy. Two months, in a sentencing context, is a lot for a first time offender.

Goudreault has filed an appeal of both her conviction and the sentence.

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Woman Convicted for Installing Spyware on Husband's Computer:
Florida woman installed spyware to catch husband having affair

Spyware are malicious computer programs that are installed on your computer by other computers without your knowledge, which do things like track your web use, your passwords, account information and so forth.

CNET News reported today that a Florida woman has been convicted of installing spyware on her husband's computer to record on-line chat conversations he had with another woman. Apparently, Florida law makes it a criminal offence to intercept any electronic communications. The court also barred the woman from using the records in her divorce proceedings.

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Co-Author of Spousal Support Advisory Guidelines speaks to Lawyers:
Professor Thompson addresses CBABC Family Law Subsection

On 18 February 2005, Professor Rollie Thompson, one of the co-authors of the recently release draft Spousal Support Advisory Guidelines, addressed members of the Canadian Bar Association British Columbia's Vancouver Family Law Subsection.

Professor Thompson's presentation clarified a number of issues involving the draft guidelines. Here are the highlights:

  • The federal Department of Justice does not intend the guidelines to have regulatory force now nor for the foreseeable future.
  • The final draft of the guidelines will be released in the summer of 2006.
  • 50% to 60% of the spousal support awards made by the courts of British Columbia fall within the range of results produced by the guidelines formulae, which are intended for "typical" cases.
  • The basic "with children" calculation is a lot more complicated than the draft guidelines present at first glance. In this formula, the guidelines require that the tax implications of spousal support be taken into account in the calculation (ie: spousal support is a deduction in the hands of the payor and taxable income in the hands of the recipient), which requires further calculations beyond the initial determination of the amount of support payable.
  • Determining the amount of support payable under the "with children" formula will require a computer program, and cannot be solved by simple arithmetic.

The Author's Concerns

While Professor Thompson's presentation was excellent and clarified a number of issues with respect to the use and implementation of the spousal support guidelines, it did raise a number of concerns about the guidelines for the author of this website:

  • Despite the intention of the draft guidelines to be "advisory" only and not have the force of law, the author fully expects that the guidelines will, over the next few years, be adopted by the courts and by the legal profession as the primary means of determining spousal support. The guidelines are, quite simply, too handy. They offer a tempting, easy way out to deal with this particularly tough issue.
  • On top of that, the guidelines offer defined lists of exceptions and criteria for picking the upper amounts and lower amounts. The author expects that these exceptions and rules will be the subject of legal argument about what numbers should be picked, which will inevitably lead to case law on the correct interpretation of those exceptions and rules even though the guidelines are not law.
  • Only the "without children" formula is easy to figure out. The "with children" formula is not. Professor Thompson said that a computer program will be required to figure out what support should be paid under that formula, and, guess what: the computer program that figures this out will be commercially available from private companies... at a price. In the author's view, it is a fundamental denial of fair and equal access to justice to require that a litigant purchase a computer program (and in some cases a computer to run it on) in order to calculate spousal support.
  • Further, the complexity of the "with children" formula, while probably necessary, makes the formula impossible for most people to figure out. It requires an understanding of the provincial and federal tax laws, an understanding of how the Child Tax Benefit works for different levels of income and numbers of children, an understanding of how the National Child Benefit Supplement works for different incomes and different numbers of children, and how spousal support is treated as a deduction for the payor and taxable income for the recipient. This means that the numbers the computer spits out are not intuitive; litigants will have to trust that the program has calculated things correctly without understanding the whys and wherefores of the numbers. This too is a denial of justice. Justice must be transparent and easily understood; the determination of spousal support should not be akin to consulting the Oracle at Delphi.
  • The guidelines have the potential to reduce an extraordinarily complex issue to a normative series of calculations that may not reflect a couple's individual needs and the circumstances of their relationship. It is too easy to simply punch in a bunch of numbers and say "see? this is what you should get," when reality is so much more complicated.

These are the author's concerns only. Frankly, the guidelines have the potential to save people a lot of money on lawyers' fees and court costs, and offer the opportunity to finally bring awards of spousal support made in Newfoundland in line with those made in Ontario, Saskatchewan and British Columbia, and vice versa. Fundamentally, spousal support guidelines are a good idea, but these concerns — especially those which touch on public access to justice — must be addressed in a meaningful, substantive manner.

Related Articles

Current News Items > Draft Spousal Support Advisory Guidelines Released

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The Pope Speaks Out (Part 4):
Same-sex marriage part of "ideology of evil," like abortion and Holocaust

The CBC reports that the Pope's fifth book, Memory and Identity, was released today and, among other things, condemns same-sex marriage and those governments willing to legalize it.

The Pope lumps same-sex marriage in with abortion and the Holocaust as part of a secretive "new ideology of evil" that plagues modern democracies and "attempts to pit human rights against the family and against man." Governments that pass laws legalizing abortion and same-sex marriage "are transgressing their powers and remain in open conflict with the law of God and the law of nature."

Evil, apparently, lurks everywhere.

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Canadian Bar Association announces Test Case on Legal Aid in BC:
CBA to launch constitutional challenge on right to legal aid in civil law cases

BACKGROUND: Legal aid in criminal cases is guaranteed, as the courts have found that the federal and provincial governments have a constitutional duty to provide legal assistance where a person faces jail as a result of the accusations. The same isn't true in civil cases. At present, legal aid is only available for family law cases where the applicant meets a strict financial requirement and there is a history or risk of family violence or the abduction of children. If someone involved in a family law matter can't doesn't meet these criteria, they will receive no assistance from legal aid at all.

On 19 February 2005, the Canadian Bar Association issued a press release announcing its plan to launch a test case in British Columbia to challenge the province's legal aid plan. If successful, the case would establish a constitutional right to legal aid in civil legal aid. CBA members were notified of the press release on 3 March 2005.

CBA President Susan McGrath explained the motivation behind the test case, saying: “we believe that a constitutional right to civil legal aid must be established in this country, and we believe that the situation is urgent,” and “without legal aid, access to justice is a hollow phrase, as many people simply cannot take advantage of their legal rights.”

The CBA has called for improvements to legal aid for the past decade, specifically for a federal transfer payment to the provinces, earmarked for civil legal aid and linked to the amount actually spent by a province or territory. This would replace the current system, in which the federal government makes a lump-sum transfer payment for several social services to the provinces and territories, with no sum earmarked separately for legal aid. It is up to the provinces, at present, to individually decide how much, if anything, they spent on civil legal aid.

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Provincial Government to Create new Child Support Service:
Service will make and change child support obligation outside courts

The Attorney General Statutes Amendment Act, 2005 has passed third reading in the provincial legislature and received royal assent. At present the legislature is made up of Liberal MLAs with two NDP MLAs sitting in oppostion, and all government bills pass with little or no debate.

Among other things, the new act, which is not yet in force, makes substantial changes to the Family Relations Act by creating a new government agency which will make and change child support obligations outside of the court process. The new Child Support Service will have the authority to change orders for child support and separation agreements that deal with child support on the application of a party to the order or agreement. The Service will be able to impute income to someone paying child support if they don't reply to the Service's demand for financial information.

After the Service changes an order or agreement, the person paying support has 30 days to apply to court for a different result, failing which the order or agreement will be "deemed" to require payment in the new amount. The Service will only be able to fiddle with orders made at certain designated Provincial Court registries and with agreements filed in those registries.

The act does not set out which Provincial Court registries will be subject to the new rules and the Child Support Service.

The Service will be guided heavily by regulations that will govern its operations and set out how the Service can impute income to people paying child support. Under the Attorney General Statutes Amendment Act, 2005, these regulations can be made by the Lieutenant Governor in Council. This means that the regulations can be made behind closed doors, without scrutiny or debate on the floor of the provincial legislature and with no publicity at all.

The changes to the Family Relations Act required by the Attorney General Statutes Amendment Act, 2005 will come into effect by order in council. You can read the text of new act at www.legis.gov.bc.ca/37th6th/3rd_read/gov04-3.htm.

The Author's Concerns

Like the Family Maintenance Enforcement Program, the new Child Support Service is another clumsy attempt to introduce a quick fix to a complex problem. Quick fixes come at a cost, in this case a breach of the principles of fundamental justice which say that everyone has a right to make a full answer and defence to any claims made against them.

Take the case of FMEP. Among other things, FMEP will decide when an adult child is eligible for on-going child support. This is normally a question for the courts, and something that a person paying support has the right to argue about. When FMEP makes their decision, they are making a judicial decision without the benefit of hearing what the payor has to say about things. This is an exercise of quasi-judicial power in the absence of a hearing and in the absence of procedural fairness. Their decision will often leave a payor with no choice but to go to court to challenge FMEP's "finding," when really the obligation to make the case for the adult child's on-going entitlement to support should have been the responsibility of the person receiving support. This is contrary to the payor's constitutional rights, and the provincial government does not have the authority to give FMEP quasi-judicial powers to exercise in the asbence of a proper hearing.

The new Child Support Service shares the same unconstitutional stink as FMEP.

Under this new system, a government agency will recalculate child support owing under a court order or a separation agreement, and the agency's decision will have the effect of changing the court order or agreement, without the matter actually being put to a judge or even allowing the parties to the order or agreement to argue their positions!

How will the Child Support Service handle the determination of support in complex situations where the Child Support Guidelines expressly give the court a measure of discretion, such as when the person paying support has the children for 40% or more of the time? This is an issue even our Court of Appeal has provided no firm direction on. What about cases where the payor earns more than $150,000 per year and the court can depart from the Guidelines numbers? What about the sharing of special expenses?

On top of all this, the regulations the Service will operate under will be passed by order in council, in secret with no public input much less any public debate. These regulations will guide the Service in imputing income to a payor, in their handling of requests for reassessment, and circumscribe the Service's operations. They will be critical to how the new Service will function and the extent of the authority it will exercise.

The powers the provincial government is assigning to the new Child Support Service are quasi-judicial in nature and the Service will be making decisions, monkeying with people's lives and changing private agreements and court orders without a hearing. This is unconstitutional. The author appreciates the intent behind this new legislation, but whatever cost savings may be realized by the few cannot be justified by this gross breach of each person's right to due process of law.

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San Francisco County Superior Court legalizes Same-Sex Marriage:
California joins Massachusetts in allowing same-sex marriages; appeal expected

A court in California has legalized same-sex marriages in the state, making California the second American state to allow gays and lesbians to marry. Three other US judges, one in New York and two in Washington, have ruled similarly and found bans against same-sex marriage to be unconstitutional.

There is nothing particularly surprising about the court's decision. What makes it noteworthy is the eloquence of the judge's reasons for judgment and how well his reasons are a propos of the Canadian same-sex marriage debate. A few quotes:

  • "The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional ... same-sex marriage cannot be prohibited solely because California has always done so before."
  • "One does not have to be married in order to procreate, nor does one have to procreate in order to be married ... thus, no legitimate state interest to justify the preclusion of same-sex marriage can be found."
  • "The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts — separate but equal."

The effect of the court's decision is automatically stayed for 60 days to allow for appeals to be filed. Two conservate groups, the Campaign for California Families and the Proposition 22 Legal Defense and Education Fund, are expected to do just that.

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Supreme Court releases report on Judicial Case Conference pilot project:
JCCs likely to be made permanent, with minor changes to Rule 60E

BACKGROUND: Since 1 July 2002, every Supreme Court family law matter in British Columbia has been subject to Rule 60E, the Judicial Case Conference Pilot Project rule. Under this rule, it is mandatory that the parties attend an informal meeting before a judge or master before most interim applications can be heard. The intentions behind this rule are to put a stop to "affidavit wars," diffuse tension, and lessen the cost of litigation by having a chance to discuss matters and explore options for settlement at an early stage in the litigation.

At a JCC, the parties and their lawyers meet with a judge or a lawyer at a private, off-record hearing. Each party presents their position on the issues, and the judge or master canvasses areas of agreement and alternatives to litigation. The judge or master may only make Orders that everyone agrees to, and may schedule dates for things like the hearing of interim applications, the exchange of documents, and trial.

On 1 March 2005, the Chief Justice of the Supreme Court of British Columbia issued a Notice to the Profession releasing the findings of a committee that had been studying the success of the Judicial Case Conference Pilot Project and soliciting feedback on the report.

In a nutshell, the report concludes that JCCs have been fairly effective at settling family law disputes, decreasing the numbers of interim applications, and reducing the number of trials in family matters. The report recommends that Rule 60E, the rule governing JCCs, be made permanent, with a few changes.

The following are the highlights of the proposed changes to Rule 60E:

  • a party requesting a JCC must give 30 days' notice of the intended hearing date;
  • JCCs should be set within 30 to 45 days' of a request for a JCC; and,
  • the parties must exchange Financial Statements before the hearing date.

In the author's view, JCCs are, on the whole, extremely useful for most family law cases. They do indeed reduce acrimony between the parties, they do promote settlement, and they have reduced the number of contested interim applications. The recommendations put forward by the committee, particularly with respect to the exchange of Financial Statements prior to the JCC, are most welcome improvements.

Related Materials

  • See "The Legal System > Interim Applications" for more information about JCCs.
  • Go to www.courts.gov.bc.ca/sc/what's%20new/Notice%20-%20Rule%2060E%20Evaluation%20Report%20Judicial%20Case%20Conferences%20in%20Family%20Matters.htm read the Notice to the Profession
  • Go to www.courts.gov.bc.ca/sc/what's%20new/Rule%2060E%20Evaluation%20Report.htm to read the committee's report

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Changes to Supreme Court Rules and Forms:
Amendments to come into effect on 1 July 2005

Summer is approaching, and with it the annual tweaking of the Supreme Court of British Columbia's Rules of Court and its court forms. The amendments that impact on family law primarily concern the advent of electronic filing of court documents and slight changes to the desk order divorce process, some of which acknowledge the advent of same-sex divorces.

The following are the amendments relevant to family law:

  1. The expiration date of Rule 60E, the rule about Judicial Case Conferences, has been extended to 2 July 2006.
  2. Rule 60(12) deals with joint applications for divorce using the desk order process. This is the process that people doing a do-it-yourself divorce use when they get along well enough with each other to co-operate in getting divorced. The process is faster than the DIY divorce process used when only one person is applying for the divorce. The new subrule requires the parties to use a revised version of the usual Writ of Summons (now Form 127A) and Statement of Claim (now form 128A).
  3. The new Forms 127A and 128A are substantially similar to the usual Forms 127 and 128, except the parties are referred to as "Party 1" and "Party 2", instead of "Wife" and "Husband," and a greater emphasis is placed on the fact that the parties are consenting to the terms of the final order that deal with things other than divorce.
  4. Rule 60(13) is changed to describe joint applications for divorce as "joint family law proceedings" rather than "joint actions for divorce."
  5. A new rule, Rule 69, has been added that allows certain documents to be filed electronically. The rule requires someone who wants to file a document electronically to sign an agreement with the court about the means of filing and keep a paper copy of all documents filed this way. Other parties to the action are allowed to inspect the paper copy of electronically filed documents. Persons who wish to use this means of filing will be required to provide an email address for delivery.

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The Writ has Dropped!
Provincial election campaign officially underway

The 2005 provincial election campaign has "officially" started ending the past few months of "unofficial" campaigning and good-news announcements on the part of the Liberal government.

Election day is Tuesday 17 May 2005, make sure you make plans to vote that day and if you can't, make sure that you arrange to vote as an absentee or hit up one of the advance polls. To find out how to vote ahead of the general election day, visit the website of Elections BC.

As everyone knows or ought to know, the government makes the laws that we all have to live with, but it's us who elects the government. Starting today your local candidates are looking for your vote, and this is your opportunity to make your concerns known. If you don't like a law, a regulation, a policy or a budget priority, now is your time to make your voice heard and influence not only who gets elected but what they do after they're elected.

Here are a few things you might want to talk to your candidates and the party leaders about.

Legal Aid for Family Law

Since the Legal Aid for family law matters was cut to bone in 2000, tens of thousands of people have been without legal advice or legal representation during some of the most difficult moments of their lives. What does your candidate have to say about restoring Legal Aid for family law matters?

The PST on Lawyer's Fees

If you've hired a lawyer in British Columbia, you paid PST on your lawyer's fees. Lawyers are one of the very few professionals that must charge PST on their bills. When the PST was first applied to lawyer's fees, the money was supposed to go to funding Legal Aid. It never did. Instead it goes into the government's general revenue.

FMEP

The Family Maintenance Enforcement Program works really well for some people, but doesn't work well at all for others. Most importantly, FMEP will make a decision about whether an adult child is entitled to continue to benefit from child support. It makes this decision without consultation with the person paying child support and without really making an effort to independently verify that the child remains entitled. This is the exercise of a judicial function without a hearing and in the absence of the basic principles of fundamental justice. This is unconstitutional as well as unconscionable. What does your candidate say about this?

The "Child Support Office"

A bill has been passed — but is not yet in force — that would create a new Child Support Office. This government agency would have the power to make and vary a child support obligation, as if it was a court. It will do this without a hearing and in the absence of the basic principles of fundamental justice. If you don't like their decision, you will have to apply to court to change it. This too is unconstitutional as well as unconscionable. Will your candidate oppose this bill coming into force?

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BC Polygamist Community sets New Standard:
Only girls 18 or older to be allowed to enter polygamous marriages

To the grief of fifty- and sixty-year-old men throughout Bountiful, BC, the Mormon sect announced Tuesday that women under the age of eighteen will no longer be allowed to enter into "plural marriages."

Previously, the sect had allowed women to marry as young as fourteen. What progress!

For background information on the community, a CBC Fifth Estate documentary on Bountiful is available at:

www.cbc.ca/fifth/polygamy/polygamy.html

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Challenge brought to Legalize Same-Sex Marriage in New Brunswick:
Province may become Canada's ninth jursidiction to legalize same-sex marriages

Four couples today launched a challenge to the common law prohibition against same-sex marriage in New Brunswick. If the challenge is successful, New Brunswick will join British Columbia, Manitoba, Newfoundland, Nova Scotia, Ontario, Quebec, Saskatchewan and the Yukon as Canada's ninth jurisdiction to have abolished this antiquated rule.

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New Resource for Lay Litigants in British Columbia:
Supreme Court launches Self-Help Information Centre

The British Columbia Supreme Court has launched a new Self-Help Information Centre in Vancouver and a new website to go with it.

The Information Centre will help people complete court forms and will provide basic information about court procedures, and is located in Room 274 in the Provincial Court building at 800 Hornby Street in Vancouver.

The new website is at www.supremecourtselfhelp.bc.ca, and features lots of handy links, information about alternatives to court, and summaries of court proceedures in Adobe's PDF format.

In the author's view, this is a wonderful and somewhat overdue new service. One of the problems many people used to have was that the registry staff — while extraordinarily helpful — are not able to provide advice or more extended explanations about the different court procedures. The new service should help a great deal. On the other hand, the service is only available in Vancouver and there are many litigants using many other Supreme Court registries who could also use the help.

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Same-Sex Marriage Bill Passes Second Reading:
Passage of Bill now depends on survival of minority government

Bill C-38, the Bill that would change the common law definition of marriage to include marriages between people of the same gender, has passed second reading in the House of Commons by a vote of 164 to 137. The Bill now heads to a parliamentary committee for review and public comment before it returns to the House for a third and final reading.

Assuming that the Bill passes third reading, it would need to pass the Senate and receive royal assent (this really is only a bureaucratic function, no one actually phones the Queen) before becoming law.

Of course, the fragile state of the Liberal minority government means that the government might well collapse before the Bill gets anywhere near to royal assent, especially now that the Conservatives have announced their intention to bring the government down at their first opportunity. If the government falls, the Bill will automatically fall off the order table. To be revived, the next government would have to re-introduce the Bill, and the Bill would have to then pass first, second and third readings in the House of Commons, be passed by the Senate, and receive royal assent before becoming law.

But what would happen if Bill C-38 dies with the government? Nothing. Same-sex marriage would remain legal in British Columbia, Manitoba, Newfoundland, Nova Scotia, Ontario, Quebec, Saskatchewan and the Yukon.

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Senior Muslim Cleric Opposed to Sharia Law in Canada:
Says sharia law not appropriate for societies based on sexual equality

BACKGROUND Sharia law is an ancient Islamic system of justice based on principles set out in the Qur'an, the Haddith and the Sunnah. In certain Islamic theocratic nations, sharia law forms the whole of the law. In Canada, sharia law has been informally used by religious scholars and Imams to resolve religious and personal disputes between Muslims who consent to the process and agree to be bound by results of that process. Sharia law is not the only faith-based arbitration process used in Canada. Members of the Orthodox Jewish community have used the Beth Din (Rabbinical Court) to settle religious and personal disputes, including divorce issues. Again, the use of the Beth Din requires the consent of the parties.

In 2004, the government of Ontario began looking at formally recognizing sharia law as a way of resolving family law disputes. Later that year, members of the British Columbia Muslim community suggested that sharia law should be similarly recognized in this province, but nothing developed from that brief debate.

On 14 May 2005, the Globe & Mail reported that the grand mufti of Marseilles, Soheib Bencheikh, opposes applying sharia law to resolve family law disputes. Mr. Bencheikh told the Globe that sharia law was developed centuries ago, by men living in a male-dominated society, and that these ancient precepts cannot logically be applied in societies governed by constitutions based on gender equality.

According to the Globe, Ziba Mir-Hosseini, of an international women's Islamic organization, said that there are two trends in the application of sharia law to family law disputes: "one is authoritaria, retrograde, patriarchal and detrimental to women's rights, and the other is progressive and acknowledges women's rights." Ms. Mir-Hosseini expressed a concern that the formal recognition of faith-based arbitration of family law problems might be seen as favouring the authoritarian trend.

In a nutshell, the concerns of Ms. Mir-Hosseini and Mr. Bencheikh are that sharia law may be read as having a bias against women which could result in an inequitable result of sharia-based arbitrations, a result contrary to the gender equality guarantees set out in Canada's Charter of Rights and Freedoms.

Related Articles:

2004 Archives > Vancouver Sun reports some local interest in formally introducing Islamic sharia law to family disputes in BC
2004 Archives > No Formal Recognition of Sharia Law in BC

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Another Challenge brought to Legalize Same-Sex Marriage:
Northwest Territories may become Canada's ninth jursidiction to legalize same-sex marriages

A gay couple has launched a challenge to the common law prohibition against same-sex marriage in the Northwest Territories. If the challenge is successful, the NWT will join British Columbia, Manitoba, Newfoundland, Nova Scotia, Ontario, Quebec, Saskatchewan and the Yukon as Canada's ninth jurisdiction to have abolished this antiquated rule.

A similar action is already under way in New Brunswick. However, as the NWT action is set to be heard on 27 May 2005, the NWT matter may well be decided first.

At present, same-sex marriages are only prohibited in Alberta, New Brunswick, the Northwest Territories, Nunavut and Prince Edward Island.

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The (new) Pope Speaks Out (Part 5):
Same-sex marriage, divorce, birth control still evil

The CBC today has reported that Pope Benedict XVI has given his first clear statement on Catholic family values. According to the CBC, the Pope has condemned same-sex marriage, divorce and birth control as "anarchic freedoms" that are "dangerous to the family."

Said the Pope, "Today's various forms of dissolution of marriage, free unions, trial marriages, as well as the pseudo-matrimonies between people of the same sex are instead expressions of anarchic freedom which falsely tries to pass itself off as the true liberation of man." Plus ça change, plus c'est la même chose.

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Legal Aid Offers New Services:
Legal Services Society slightly expands coverage for family law files

BACKGROUND Following the brutal cuts to the budget of the Legal Services Society in 2000, legal aid for family law files was all but eliminated. The Legal Services Society is the organization that provides legal aid in this province. To qualify for legal aid following the cuts, you had to meet LSS's income criteria and be in a situation where violence or the abduction of children was a risk or a live issue. As a result, thousands of people were left without proper legal representation at one of the most critical moments of their lives.

On 25 May 2005, the Legal Services Society announced that new legal aid funding would now available for "limited scope" family law files. The new program provides clients with up to 14 hours of help from a lawyer. The lawyer's services may include:

  • basic legal advice;
  • helping draft pleadings;
  • helping draft separation agreements;
  • negotiation with opposing parties;
  • support for clients in mediation; and,
  • guidance about how the client should represent him- or herself in court.

The new program is extremely limited in scope, and goes nowhere close to restoring the scope of LSS's services prior to the Campbell government cuts, but hey, it's better than a kick in the teeth.

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Overhaul of Family Justice System Proposed:
BC Justice Review Task Force releases important study

In May 2005, the Family Justice Reform Working Group, a committee appointed by the British Columbia Justice Review Task Force, released its landmark paper on the reform of the family justice system, A New Justice System for Families and Children. The Working Group was established by the BC Justice Review Task Force in 2003 with a mandate to explore options for fundamental change in the family law system to better serve parents and children. Members of the Working Group include representatives from the judiciary, the family law bar and the Ministry of the Attorney General.

The Working Group proposes a fairly comprehensive overhaul of the existing family justice system, with the following key recommendations:

  1. The creation of a web-based information service dealing with all aspects of family law and family law dispute resolution.
  2. Making mediation a mandatory step before the courts are asked to resolve a dispute.
  3. Instituting alternative out-of-court dispute resolution services where mediation is not appropriate because of, for example, family violence.
  4. Making mediation and collaborative law the expected way that couples resolve family law disputes, as opposed to the court system, which is the current norm.
  5. Creating a single court to deal with family law matters, rather than the existing split between the Provincial (Family) Court and the Supreme Court.
  6. Changing the court forms to a simpler "fill in the blanks" format.

The Workng Group's report is available at at:

www.bcjusticereview.org/working_groups/family_justice/final_05_05.pdf

Be careful about clicking the "print" button! The paper is about 130 pages long.

The author will post his commentary on the report once he has had a chance to digest it. It is, after all, about 130 pages long...

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First Same-Sex Military Marriage:
Sergeant and warrant officer wed by base chaplain in Nova Scotia

The CBC reports that a same-sex military couple were wed at Nova Scotia's Greenwood air base in May 2005 by the base's head chaplain. The military's policy is, apparently, to permit same-sex miliary marriages in jurisdictions whose courts have overturned the old common law prohibition against gay and lesbian marriage. Nova Scotia found the prohibition to be unconstitutional in 2004.

According to the CBC, a second same-sex military marriage will be held later in the year at a base in Quebec, which found the prohibition to be unconstitutional in 2003.

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Sometimes Things Happen in Vegas That Don't Stay in Vegas:
Application to annul ill-advised marriage denied

This website has always said that Las Vegas marriages were just as valid as any other kind of marriage. On 24 May 2005, one unhappy newlywed found that out the hard way.

In the recently-reported 2005 Supreme Court of British Columbia case of Davison v. Sweeney, the plaintiff sought an annulment of her marriage. The facts are these. The plaintiff was in Las Vegas for a four day weekend holiday. So, coincidentally, was the defendant. Somehow these two well-lubricated singles found each other around midnight one evening. Within hours of their meeting, they were discussing mariage. Shortly afterwards, they found themselves an all-night courthouse which gave them a marriage licence, and, at 4:20am, they slipped on the solemn bonds of matrimony at a nearby all-night wedding chapel.

Following their nuptials, the wedded couple headed to their separate hotels to sleep it off. Two days later, the plaintiff returned to her home in British Columbia, and the defendant to his in Alberta.

The plaintiff then applied for a declaration that her marriage was a nullity, an application that the defendant did not oppose.

The court, however, was not as compliant with the plaintiff's application as the plaintiff had been with the defendant's proposal. Quite rightly, the court held that, on the plaintiff's own evidence, she had "decided, by the exercise of free will, to marry." While it was possible that her judgment may been somewhat impaired by alcohol, she nevertheless had a recollection of her marriage and had taken the deliberate and time-consuming steps that were required to achieve the solemnization of her marriage. The marriage was therefore valid on that count.

The plaintiff's lawyer then argued that the marriage was never consummated.

This website has always said that the lack of sex in a marriage isn't enough to have a marriage annuled; there must be either a physical inability to have sex or an "invincible repugnance" to having sex, such that having sex is just not possible. The court quite rightly held that the simple fact of not consummating the marriage wasn't enough to establish an inability to consummate the marriage. The marriage was therefore valid on that count as well.

Application denied. Please, don't drink and wed.

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Canadian Bar Association Launches Legal Aid Test Case:
Law suit seeks to force governments to properly fund civil legal aid

BACKGROUND: Legal aid in criminal cases is guaranteed, as the courts have found that the federal and provincial governments have a constitutional duty to provide legal assistance where a person faces jail as a result of the accusations. The same isn't true in civil cases. In January 2002, the provincial government, led by Gordon Campbell, radically slashed funding for civil legal aid, leaving funding available only for family law cases where the applicant meets a strict financial requirement and there is a history or risk of family violence or the abduction of children.

In February 2005, the British Columbia branch of the Canadian Bar Association announced it would be bringing a test case intended to force the federal and provincial governments to properly fund civil legal aid. In BC, legal aid is provided by the Legal Services Society, a non-profit organization established by the provincial government.

Yesterday, the CBABC filed its Statement of Claim in the Vancouver registry of the Supreme Court of British Columbia, naming the Queen in right of the Province of British Columbia, the federal Attorney General and the Legal Services Society as defendants. The goal of the law suit is to establish a consitutional right to legal aid, and the relief sought in the suit includes:

  1. a declaration that the defendants are in breach of ss. 7, 15(1) and 28 of the Charter of Rights and Freedoms;
  2. a declaration that the federal and provincial governments are in breach of s. 36(1)(c) of the Constitution Act, 1982;
  3. a declaration that these constitutional documents require the governments to establish and maintain an adequate legal aid system; and,
  4. an order requiring the governments to actually establish and maintain an adequate legal aid system.

“The CBA has opted to pursue the litigation route out of a sense of profound frustration with cuts to legal aid that have resulted in a vacuum in access to justice for the poor in BC,” said CBA President Susan McGrath, according to an email circulated by the CBA. “While the courts are frequently asked to consider the right to legal counsel in individual cases, we believe this is the first systemic challenge to a legal aid program in Canada.”

A copy of the Statement of Claim is available on line at:

www.cba.org/CBA/News/pdf/statement_legalaid_jun05.pdf

Related Articles:

Current Items > CBA announces Test Case on Legal Aid in BC

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Same-Sex Marriage Legalized in New Brunswick:
No word whether province will appeal decision

The New Brunswick Court of Queen's Bench today handed down its decision that the definition of marriage must be changed from from the lawful union of a man and a woman to the lawful union of two persons.

The province has not yet announced whether it intends to appeal the decision, although, frankly, it is extremely unlikely that it would. The CBC reports that Premier Bernard Lord, who is personally opposed to same-sex marriage, has said that the province "would not put up a fight if the courts or Parliament ordered it to make a change."

The only Canadian jurisdictions that have not yet recognized same-sex marriage are Alberta, PEI, the Northwest Territories and Nunavut.

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Equal Marriage Bill Passes Final Reading in House of Commons!

Bill C-38, the Civil Marriage Act, the federal bill that would change the common law definition of marriage to include same-sex couples, has passed its third and final vote in the House of Commons this evening, by a vote of 158 to 133, after the Liberals used a procedural rule to force an end to debate.

The bill must still pass through first, second and third reading in the Senate and receive royal assent before becoming law. (The Queen is not actually consulted for her approval, royal assent is given by the government through the Governor General.) When the bill becomes law, Canada will join the Netherlands and Belgium as the only countries in the world to have recognized same-sex marriage. Passage through the Senate is expected to take about a month.

Until the bill becomes law, same-sex marriage will remain legal in those jurisdictions whose courts have already overturned the old common law definition, and illegal in those jurisdictions whose courts have not, namely Alberta, PEI, the Northwest Territories and Nunavut.

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British Columbia Posts Record Surplus:
Isn't it time to restore funding to the family justice system?

CBC reports that British Columbia has posted a record surplus of $2.6 billion (that's $2,600,000,000.00!) for the 2004/2005 fiscal year. Some of this surplus has been realized as a result of gutting funding to hundreds of provincial programs and services, including the provincal court system and legal aid.

In January 2002, the provincial Liberal government slashed funding to legal aid to the point where the board of the Legal Services Society, the organization that provides legal aid in this province, refused to implement the Draconian measures imposed upon it and was fired as a result. Legal aid became available for family law matters to only those who met legal aid's threshold poverty line income and were at risk of abuse or child abduction. Needless to say, legal aid's rolls thinned substantially.

At the same time, the provincial government closed dozens of provincial courthouses across the province (along with dozens of legal aid intake clinics). The provincial court is the most user-friendly of all courts and is where a great deal of family law matters are dealt with, especially for people without legal representation. The net effect was to reduce people's ability to access justice and compound the monumental burden the other provincial courthouses were already struggling under, sometimes causing significant delays for people attempting to deal with even simple family law problems.

The government has attempted to solve these problems by providing pamphlets and websites, neither of which are a meaningful substitute to obtaining proper legal advice and representation, or being able to have your problem heard in a courthouse reasonably close to your community.

The budget of the Legal Services Society was $88.3 million in the 2000/2001 fiscal year. By the 2003/2004 fiscal year, that had been reduced to $54.0 million. (These numbers are from the budgets of the Ministry of the Attorney General, available online.) The decrease in funding of $34.4 million is 0.01% of the surplus the provincial government announced today.

These funds must be restored. The people who need legal help from the Legal Services Society simply cannot afford to hire a lawyer at one of the most critical and emotional times of their lives, and pamphlets and websites just don't cut it.

Want to help restore funding to our family justice system? Write, phone, fax or email your MLA, the Premier and the Attorney General.

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Spain Legalizes Same-Sex Marriage:
Spain becomes fourth country in world to legislate equal marriage

Two days after our House of Commons passed a bill legalizing same-sex marriage, Spain's government has done the same. Spain's Senate had rejected the bill, however the Spanish Senate exists only in an advisory capacity and the legislative assembly approved the bill over the Senate's objection.

When the Spanish and Canadian bills become law (in Spain, the bill must wait to be published to have legal effect), they will join the Netherlands and Belgium as the only four countries in the world to allow gays and lesbians to marry.

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Changes to Joint Divorce Process in Effect:
New court forms required as of 4 July 2005

As of today, all court forms used in the joint divorce application process have been revised. All court forms must now identify the parties as "Party 1" and "Party 2" rather than "Husband" and "Wife." No changes have been made to the sole divorce application process.

While most of the existing court forms used in the joint divorce process can be used making this simple change, the court has significantly revised the special forms of Writ of Summons and Statement of Claim. You will not be able to use the old forms, you will have to start from scratch with the new ones.

Samples of the new Writ of Summons and Statement of Claim will be available at your local registry of the British Columbia Supreme Court. Examples of what the forms look like completed are available in the segment on the desk-Order divorce process in the chapter "Marriage & Divorce > Divorce."

If you are using or are planning on using forms purchased through a commercial kit, such as that published by Self-Counsel Press, check the kit to make sure the court forms supplied conform to the new requirements! If they don't, print out this news article and get your money back from the book store.

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Spousal Support Advisory Guidelines Update:
Authors release report on court treatment of Guidelines

Professors Rollie Thompson and Carol Rogerson release their draft proposal Spousal Support Advisory Guidelines in January 2005. The Canadian Bar Association has made available the authors' first report on the way that the courts have treated the SSAG since the release of the first draft.

In this report, the authors addressed some common criticisms of the SSAG that have been raised by lawyers and judges. They also provide a digest of court cases from across Canada that have considered the SSAG. You can find the report at:

www.cba.org/CBA/Sections/pdf/CasesCriticisms.pdf

In related news, on 4 July 2005, the British Columbia Supreme Court released its first judgment considering the SSAG in the case of W. v. W., 2005 BCSC 1010. In that case, Madam Justice Martinson said that the SSAG "provide a crosscheck against the assessment made under existing law," and that the formulae provided in the SSAG are "consistent with the law in British Columbia." She then made an Order for spousal support using the SSAG as "a check."

W. v. W. is also useful for Her Ladyship's excellent review of the basic law on spousal support.

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Rate of Domestic Violence Unchanged:
Statistics Canada report shows no decrease in last five years

A report released by Statistics Canada on 14 July 2005 shows that the rate of domestic violence in Canada remained constant between 1999 and 2004, with seven percent of women and six percent of men being abused by a current or former partner or spouse.

The study also showed that:

  • Female victims are twice as likely to be injured than male victims.
  • Women are three times as likely to fear for their lives during an attack, and are twice more likely than men to have been the victim of ten or more attacks.
  • Eleven percent of female victims reported being stalked by an ex partner; six percent of male victims reported being stalked.
  • The groups most likely to be at risk of abuse are people under the age of 25, people who are recently separated, people in common-law relationships, and people in short relationships of three years or less.

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Litigation Guardians may Commence Divorce Proceedings:
Supreme Court of British Columbia issues interesting judgment

The Supreme Court of British Columbia has given judgment in the recent case of M.K.O. (by his Litigation Guardian T.O.) v. M.E.C. which says, essentially, that a litigation guardian may bring divorce proceedings on behalf of an incapacitated litigant. "Litigation guardians," formerly known as guardians ad litem, are persons who bring or defend a legal proceeding on behalf of a person under a legal disability. Typical "legal disabilities" include being a minor or being mentally incapacitated.

In the highly unusual case of M.K.O., the Plaintiff was an 85 year old man with Alzheimer's desease, and the Defendant was his 83 year old wife from a second marriage. T.O., M.K.O.'s litigation guardian, was M.K.O.'s son. According to the judgment, each of T.O. and M.E.C. were alleged to have a financial interest in whether the divorce was granted, as the order would effect the way each of them might inherit M.K.O.'s estate in the event of his death.

Litigation guardians will normally start and defend law suits on behalf of their charges if those persons can't start or defend the action on their own. These sorts of law suits almost always deal with questions of property or damages, they almost never deal with a change in a person's legal status.

In M.K.O., the court held that a litigation guardian could start a divorce proceeding on behalf of his or her charge as long as it could be proven that a divorce was in the charge's best interests. Even if that can be shown, however, the requirements set out in the Divorce Act for divorce orders must also be satisfied.

While there had been an indisputable separation between the spouses, the "separation" occured when M.K.O. was placed in a care facility. The court held that in the absence of the intention to separate and terminate the marriage, mere physical separation would not suffice. Moreover, in M.K.O.'s current condition he was incapable of deciding whether he wanted a divorce or even wanted to be separated from M.E.C.

M.K.O.'s divorce application was dismissed.

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Second BC Judgment on Spousal Support Guidelines Released:
Court in this case comes to much different conclusion than in first

On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the draft proposed Spousal Support Advisory Guidelines in the case of W. v. W. In that case, Madam Justice Martinson held that the SSAG "provide a crosscheck against the assessment made under existing law," and that the formulae provided in the SSAG are "consistent with the law in British Columbia." She then made an Order for spousal support using the SSAG as "a check," in an amount which fell within the range produced by the SSAG formula.

Today, the Court released its decision in the case of M.S. v. W.S., 2005 BCSC 939. In this case, the Plaintiff sought an Order that spousal su