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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: 2006
Canadian Bar Association Announces Election Strategy: The Canadian Bar Association, the national voice of Canada's lawyers, has announced its strategy for the 2006 federal election. The strategy focuses exclusively on the issue of access to justice — the proper funding of legal aid programs to ensure that every Canadian, regardless of income, has access to the justice system. The CBA has posted a webpage setting out its position on this issue, with helpful links to news releases, position papers and reports, including the CBA's letter to the leaders of the five main federal parties. Visit their new page at www.cba.org/CBA/Advocacy/election2006/. Back to the top of the page. New Process to Appear Back Before a Specific Master or Judge: The Supreme Court of British Columbia has adopted a new procedure and a new electronic form for parties wishing to appear back before the same master or judge on an application to standardize the process. Normally, judge-shopping is not permitted, and most litigants never know who is going to wind up hearing an application. Sometimes, however, a judge or a master will declare that he or she is "seized" of a case, whether of a particular application or of a bunch of applications. ("Seized" means that the judge has decided to be solely responsible for future hearings in a matter.) It can also happen that an application couldn't be completed in the time alloted, so that it makes sense for the judge or master who heard the first part should hear the final part. The new process is intended to make it easier for people to get back in front of the same judge or master who heard an earlier portion of an application or a case. More importantly, the new process occurs primarily by email with a new online form published by the court. Go to http://www.courts.gov.bc.ca/sc/requesttoappear.asp to use or review the court's new Request to Appear Back Before a Specific Judge/Master. All parts of the form must be completed, including the nature of the application, the reason why the application must be heard by the specific judge or master, the position of the opposing party as to the application, the last hearing date before the specific judge or master, and the mutually convenient dates for the appearance back before the specific judge or master. Note that the person requesting the hearing is obliged to send a copy of the Request by fax or mail to parties who do not have access to email. This new procedure was introduced on 1 January 2006. It will be voluntary until 28 February 2006, after which it will be mandatory. Back to the top of the page. Court of Appeal Confirms Tax Judgment: On 20 December 2005, the British Columbia Court of Appeal released its decision in Christie v. British Columbia (Attorney General), holding that: "I would set aside the order made below and grant Mr. Christie a declaration that to the extent that the [provincial Social Services Tax Act] purports to tax legal services related to the determination of rights and obligations by courts of law or independent administrative tribunals, it is unconstitutional as offending the principle of access to justice, one of the elements of the rule of law." The court was asked to clarify its judgment because of conflict between the parties on the form of order to be drawn, and it did so in a further decision released today. The court essentially reiterated the quote above from its earlier judgment and approved the form of order drafted by counsel for the Attorney General. It also refused the Attorney General's belated request for a stay of the order. The form of order approved by the Court of Appeal can be found in PDF format at the website of the Canadian Bar Association, www.cba.org. Update: On 14 February 2006, the provincial government has announced its intention to appeal the decision of the Court of Appeal to the Supreme Court of Canada. It the Supreme Court decides to hear the government's appeal, the issues will not be finally decided for another year to a year and a half. In the meantime, the provincial Consumer Taxation Branch has advised lawyers that they should continue to collect PST from their clients, and hold the PST in trust pending the court's decision. If the government wins the appeal, lawyers will remit the PST to the government; if the government loses, lawyers will refund the PST to their clients. Related Articles: 2005 Archives > No More PST on Legal Fees! Back to the top of the page. Faith-Based Arbitration now Barred in Ontario: After two years of vigorous debate about faith-based arbitration of family law disputes in Ontario, the provincial government has passed the Family Statute Amendment Act, repealing the 1991 provincial Arbitration Act. It is now not legal for Jews to arbitrate matters using the Beth Din, or for Muslims to have issues resolved under Sharia law. This issue was first raised in 2003 when the Ontario government commissioned a report to look into faith-based arbitration, and many groups, Jewish and Islamic alike, took strong stands on both sides of the issue. Faith-based arbitration remains legal in British Columbia, providing that the arbitration agreement does not purport to oust the jurisdiction of the courts. Related Articles: 2005 Archives > Ontario Suspends All Faith-Based Arbitrations Back to the top of the page. The Provincial Government's new Child Support Service: The new Child Support Service, first reported by this website on 11 March 2005, is lurching towards reality. According to a source at the Attorney General's office, the first pilot project will be located in Kelowna in early 2006, to expand to Vancouver once the kinks are worked out, and then on to Surrey. The requried amendments to the Family Relations Act will be brought into force when the pilot project is ready to launch. Apparently, the Attorney General's office is still working on the regulations and procedures that will guide the day to day operations of the pilot project. The amendments to the Family Relations Act are published in the 2006 editition of British Columbia Annual Practice (Western Legal Publications), and the changes are to ss. 1(1), 93.3, 99(1), 99(3), and 129(4). The law that establishes the Child Support Service was snuck in through the back door last year, buried in an omnibus statute, the Attorney General Statutes Amendment Act, 2005, that was guaranteed to get little, if any, public attention. Go to www.legis.gov.bc.ca/37th6th/3rd_read/gov04-3.htm to read the act; go to www.leg.bc.ca/hansard/37th6th/h50217a.htm#11935 to read the Hansard record of the debate in the Legislature. A description of the project and the author's concerns about the constitutional validity of the new service can be found in the 2005 News Archives, Provincial Government to Create new Child Support Service. Back to the top of the page. New Ruling from Court of Appeal in Tax Judgment: On 20 December 2005, the Court of Appeal for British Columbia ruled that the provincial sales tax should not apply to legal fees charged in relation to court proceedings brought to determine a right or obligation. On 2 March 2006 the court heard the provincial government's application to stay the effect of the judgment until the Supreme Court of Canada had heard the government's appeal of the court's judgment. (When the effect of a judgment is "stayed," the judgment still stands but it will not have force until a higher court has had the chance to hear an appeal of the judgment. In family law, a person might ask that an order increasing child support be stayed until an appeal is heard. If the stay application is granted, that person will continue paying at the old rate until the appeal is deal with.) Today the court released its judgment. It agreed with the government that the part of the order which held that the law imposing PST on legal fees is invalid should be stayed. It did not agree that lawyers must start remitting PST on their fees to the government pending the hearing of the appeal. As a result, lawyers will continue collecting PST on their fees and continue to hold those funds in trust for their clients. When the Supreme Court of Canada decides the appeal, if the government wins the PST will be paid by lawyers to the government, but if the government loses the PST will be returned to the lawyers' clients. Related Articles: 2005 Archives > Court of Appeal Confirms Tax Judgment Back to the top of the page. Family Relations Act Under Review: On 1 February 2006 the provincial Ministry for the Attorney General announced that it is undertaking a review of one of the most important statutes governing family law in British Columbia, the Family Relations Act, and seeks public input on certain topics. The ministry will develop discussion papers for further consultation and discussion before any changes are made to the law. The topics under review are:
Background information on the present law on of these topics can be found elsewhere in this website, through the menu at left. Certain topics are not under review:
Those who wish to put their two cents in may contact the Ministry at: Child & Family Law Policy Office Additional 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 The full text of the Ministry's announcement can be found at: www.ag.gov.bc.ca/justice-services/publications/Review_Family_Relations_Act.pdf Related Articles: 2005 Archives > Overhaul of Family Justice System Proposed Back to the top of the page. When is a married couple separated? The issue of separation most frequently crops up for common-law couples, because limitation periods with respect to claims for spousal support and child support for step-children begin to run from the date of separation. The date of separation is rarely an issue for married couples, because there are no limitation periods that hinge on separation. On 17 March 2005, the British Columbia Supreme Court released its judgment in Routley v. Paget. The date of separation was important in this case because the parties had executed a marriage agreement that gave the wife certain entitlements the longer the marriage lasted. The couple married in 1994, but moved into separate homes in 1997. Despite the physical separation, the couple maintained a relationship of sorts which was, at times, sexual in nature. Because of the separation agreement, the husband argued that separation occured in 1997; the wife, on the other hand, argued that they didn't really separate until 2003 when the husband decided that he'd had enough and commenced divorce proceedings. In his Reasons for Judgment, Mr. Justice Ralph reviewed the case law and decided that the separation occured in 1997, when there was the "marked change in the nature of the parties' relationship" and they began to live in separate houses. His Lordship reviewed the law on when a married couple should be deemed to have separated:
His Lordship concluded that: "I do not think the nature and frequency of their continuing contact constituted either a continuation of the marriage or, insofar as Mr. Routley was concerned, a cohabitation with reconciliation as its primary purpose." Back to the top of the page. Damages Awarded for Deception in Marriage: On 24 March 2006, the British Columbia Supreme Court released its judgment in the peculiar case of Raju v. Kumar, in which the wife sued her husband for "damages on the basis that she was induced to marry him" by the "fraudulent misreprepresentation" that it was his intention to remain married to her. The background of this case requires some explanation... The wife was a Canadian citizen originally from Fiji. The husband was a Fijian citizen. They were introduced by relatives in April 1999, and she flew to Fiji to meet him two months later. Within a few days, the parties agreed to marry and did so shortly afterwards. The wife flew back to Canada to start the immigration paperwork and submitted the forms in July 1999. Things get a bit complicated after this. Suffice it to say that there were suspicions of adultery, actual adultery and delays in immigration which resulted in the fellow not getting into Canada until December 2001. The unhappy couple separated a few weeks later. The judge who heard the case, Mr. Justice Edwards, held that the husband's intention in marrying the wife was for immigration purposes rather than a "real marital commitment." The wife sued her husband for a damages under a variety of tort claims that rarely see the light of day. This is what the judge decided about the general law on the subject:
The court awarded the wife general damages of $10,000 for "hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children." The court dismissed the wife's claims to damages for the husband's adultery, infliction of nervous shock, special damages for the wife's flights to Fiji and punitive damages. The Author's Concerns Users should be cautioned that this case is very much a one-of-a-kind case. Users should not assume that because one or more of the factors present in this case is present in your case you will receive an award of damages. Cases like this one are extremely rare. In fact, most tort claims between spouses are founded on physical, mental or sexual abuse. In general, tort claims for anything other that abuse should be discouraged. Our system of divorce is a "no fault" system for a couple of very good reasons: misconduct between spouses may be the cause of the termination of a relationship but it should have nothing to do with how the children wind up being cared for or how assets are divided; and, litigation between spouses should be discouraged to the greatest extent possible, save where litigation is necessary to preserve a right or entitlement, or to prevent harm or loss. Claims under the law of torts are extraordinarily inflammatory and will make litigation not only inevitable but far more acrimonious than would normally be the case. Back to the top of the page. Masters May Make Final Orders by Consent: BACKGROUND: Masters of the Supreme Court are judicial officials with less authority than Justices of the court. Masters may only exercise the authority expressly given to them by statute, regulation or rule as a result of the operation of s. 96 of the Constitution Act, 1867. Some of this authority can be found in the provincial Supreme Court Act, but is most clearly spelled out in the Practice Direction of the Honourable Mr. Justice Esson of 22 May 1990. Without going into the constitutional and jurisdictional nitty-gritty of it all, the general rule of thumb is that Masters can't make final orders about anything in family law actions, only interim orders. (Interim orders are temporary orders that are good until they are set aside or until there is a final order made by a Justice following trial or with the consent of the parties.) On 4 April 2006, the British Columbia Supreme Court released its judgment in the case of Pye v. Pye. In this case, the parties had reached a settlement at a Judicial Case Conference (a "JCC"). The Master made the order sought by the parties. One of them later decided the settlement was ill-conceived and asked that the Master's order be set aside on the ground that the Master didn't have the jurisdiction to make a final order in the first place. Madam Justice Gerow gave an excellent and exhaustive review of the law on the authority of Masters and held that the Master at the JCC could make a final order as long as:
Her Ladyship held that: "a master has jurisdiction to make a final order by consent since he is not exercising either a judicial or adjudicative function because the order is not a result of a deliberate judicial decision made after a hearing and argument, and there is no dispute regarding either the facts or the law." Back to the top of the page. Parental Mobility Rights: BACKGROUND: "Mobility rights" is the terms that family law lawyers use to describe the rules about when a parent wants to take the children and live somewhere else, away from the other parent. Normally, a move that's relatively close isn't much of a problem. It can be a problem when the parent seeking the move wants to go to a different part of the province, another province altogether or to an entirely different country, since the effect of the move will almost always damage the relationship the children have with the parent who doesn't move. As the issues involved in mobility cases are so complicated, it is difficult to predict what the result of any particular case will be and many cases that seem to be similar often come to different conclusions. Calinski v. Calinski, 2006 BCSC 469 In this case, the parties separated about a year after their child was born. Two months later, the husband agreed to an order giving him a relatively small amount of time with the baby and giving the wife sole custody and sole guardianship. One year later, the wife's application for an order allowing her to move with the child to Poland was dismissed. Two years after that, she applied to move to Toronto, and lost that application as well. She moved to Toronto nonetheless, leaving the child with the husband. The present decision stemmed from the husband's application to change the custody and guardianship order to suit the circumstances, and the wife's cross-application for an order that the child move to live with her. The court held that the motives for moving to Toronto were not relevant unless they related to her ability to care for the child. The wife's explanation for having moved was not convincing to the court, which held that she was motivated by her own best interests, not the best interests of the child, and reflected poorly on her parenting abilities. Accordingly, the child would remain in Vancouver with the father, to whom the wife would pay support. Desrosiers v. Desrosiers, 2006 BCSC 474 In this case, both parties were in their 20s and separated slightly more than a year after they had married, which was about two and a half years after their daughter was born. Both parents had become involved in new relationships, following the commencement of proceedings and an order giving the wife the child's primary residence. This decision came from the wife's application to move to the Lower Mainland from Cranbrook, based on the following changes: she had lost her job in Cranbrook; she had become engaged to a fellow in the Lower Mainland with a nice six-figure salary; and, she'd found a job in the Lower Mainland. The court allowed the move on the grounds that:
Back to the top of the page. Changes to the Child Support Guidelines: BACKGROUND: The Federal Child Support Guidelines came into force on 1 May 1997, and radically changed the way that child support is dealt with in Canada. Most significantly, the Guidelines changed the way that child support is calculated from a means-and-needs analysis to a set of fixed tables, which index the amount of support to be paid by the number of children and the payor's income. Despite a requirement that the tables be revised every five years, they have not been updated until now, nine years later. On 1 May 2006, a bunch of changes to the Child Support Guidelines came into effect. These changes are discussed in more detail in the chapter Child Support > The Guidelines, but the nutshell summary is this: Most significantly, the child support tables have been revised. For most people, the amount of child support payable is going up. For wealthier people, it's going up a lot. For people with very low incomes, the amount of child support payable will actually decrease. This change in the table amounts is expressly defined as a "material change in circumstances" that will automatically allow everyone who is paying or receiving child support the opportunity to go back to court and have the order varied to reflect the new child support tables. There is no need to prove that anything else has changed for either parent, the coming into force of the new tables is enough. Another change will allow payors living in jurisdictions with higher tax rates than Canada to have their income "grossed down" to reflect what their incomes would be if they paid Canadian taxes, which will generally reduce the amount of child support payable. Another change requires that the court, when deciding whether a child's expense should qualify as a "special and/or extraordinary expense" payable by both parents, look at whether the expense is one that the payor can "reasonably" afford to pay, and sets out a number of factors that should be taken into account in making that decision. Finally, the test for whether the payment of the table amount of child support would cause "undue hardship" for either the recipient or the payor has been modified to include a formula that the court must use in comparing the standards of living in the payor's home and the recipient's home.
The full text of the regulation revising the Child Support Guidelines and the government's summary of the changes can be found at: canadagazette.gc.ca/partI/2005/20051029/html/regle4-e.html The child support calculator available in the "Child Support" section of this website has been updated to reflect the new tables. Back to the top of the page. The 2006 Federal Budget: The new conservative government tabled its first budget in the House of Commons on 1 May 2006, with most of the tax changes coming into effect on 1 July 2006. The budget will have a positive impact on middle class families, but lower income families won't see much of a benefit at all. Before getting into the details, however, here's a quick primer on personal income taxes to put the government's happy announcements into perspective: For employed people, taxes are paid on the taxpayor's total income from all sources, including wages, salaries, commissions and bonuses, as reported on T4 slips. Old Age Security payments, Employment Insurance benefits, Canada Pensions Plan payments and Workers' Compensation benefits are also taxable income, as is income for things like interest from savings accounts, rental income, income from cashed out RRSPs, and so forth. Taxes are paid on all of this income. There are only a few expenses that can deducted from this income before tax is calculated, like RRSP contributions, child care expenses and union or professional dues. Apart from only a few deductions, all income is taxed. This is where tax credits come in. Tax credits include thing like the basic personal deduction (around $6,500), a credit for a spouse, credit for CPP and EI contributions, interest paid on student loans, and so forth. The thing about these credits is that they are not a straight deduction from either income taxes or taxable income. The taxpayer gets to deduct 15% of the total tax credit from the taxes owing to the federal government, and 6.05% from taxes owing to the British Columbia government. That nice, fat personal deduction really isn't so great when you only get to deduct 15%. As a result, you should remember that when the government announces a new tax credit, they're announcing something that will reduce your taxes by 15% of the credit, not 100% of the credit. Even new federal benefits aren't all they're cracked up to be, since federal benefits are taxable. Like CPP and OAS, the benefits are added to the total income a taxpayor pays tax on. A $100 annual benefit actually is only worth about $66 to $79, depending on your tax bracket, or about $5.50 to $6.57 per month. First, the GST will be lowered by 1% effective on 1 July 2006, a statutory holiday. That means a one dollar chocolate bar will now cost $1.06 (plus PST) rather than $1.07 (plus PST), whoo-hoo. The Harper government promised to lower the GST by a total of 2% during the election, but has not said when the second cut would take effect. The benefits of the cut to GST probably won't mean much to lower income Canadians, since the budget increases the tax rate for the lowest tax bracket, applicable to folks earning less than $35,595, to 15.5% from 15.0%. Second, there a bunch of new federal benefits and tax credits which will (slightly) help most families, particularly families with children:
Finally, the budget promises that the basic personal deduction will increase to $10,000 by 2009. Back to the top of the page. Shared Custody and Separation Agreements on Spousal Support: The Supreme Court of British Columbia has released its decision in the case of Borrett v. Borrett, 2006 BCSC 711. The case is notable not for the facts of the parties before the court, but for its consideration of spousal support payable under a separation agreement and the calculation of child support payable when the parents have the children for an almost equal amount of time. With respect to the first issue, the case provides an excellent summary of the Supreme Court of Canada's decision in Miglin v. Miglin. With respect to the latter, the case reviews and applies the Supreme Court's decision in Contino v. Leonelli-Contino. This judgment provides an excellent and easy to understand summary of the current law on these issues. Back to the top of the page. New "Representative for Children and Youth": The provincial government has tabled Bill 34, the Representative for Children and Youth Act, in the Legislature, following the recommendations to Ted Hughes in his April 2006 BC Children and Youth Review Report. The legislation will create a new provincial office of the Respresentative for Children and Youth, further to certain deficiencies identified by Mr. Hughes. The Representative will be an independent officer of the Legislature, able to access information held by any provincial government body, charged with providing advocacy services to children and families involved in:
The Representative will also have the power to investigate the critical injury and death of children. Back to the top of the page. Woman Jailed in Abduction Case: BACKGROUND: The abduction of a child by a parent is an offence under the Canadian Criminal Code where another parent has custody of the child. It can even be an offence for a parent with custody to abduct a child. It is also a criminal offence to knowingly breach a court order. Nevertheless, cases of abduction are usually dealt with through the civil courts, mostly because the police are very reluctant to actually investigate and prosecute offences which occur in the context of a dispute between parents. On 12 May 2006, Canadian Press reported that a woman accused of abducting her two children from their father in British Columbia and fleeing to France has been denied bail and will be held in custody until her trial. Nathalie Gettliffe-Grant is alleged to have taken the children to France in 2001 after the court refused her request to take her children to visit their grandmother there. The father, Scott Grant, started litigation in France (at no small cost, one assumes) and, on 14 February 2006 won a ruling that the children be returned to Canada as the mother had breached the Hague Convention on the Civil Aspects of International Child Abduction. Ms. Gettliffe-Grant was arrested at the Vancouver airport when she returned to the country to defend her doctoral thesis at UBC. Her trial is set for 17 July 2006. The 2001 decision denying Ms. Gettliffe-Grant's travel application is not reported. However, a 2003 application of Mr. Grant, made in British Columbia in the thick of the proceedings in France, is reported as Grant v. Grant, 2003 BCSC 649 and gives some idea of what was going on. Back to the top of the page. Update on Ruling Cancelling PST on Lawyer's Fees: On 20 December 2005, the Court of Appeal held that the Provincial Sales Tax should not apply to lawyer's fees charged in connection "the determination of rights and obligations by courts of law" in the case of Christie v. British Columbia (Attorney General). The provincial government is appealing this decision to the Supreme Court of Canada and a few months ago obtained an order partly suspending the Court of Appeal's decision (a "partial stay") until the Supreme Court of Canada hears the case. The effect of the suspension was to require lawyers in British Columbia to continue to collect the tax but hold it in trust until the case is finally dealt with. On an application by the appellant, the court agreed that the the partial stay should be varied to allow some relief to low income people immediately. People who meet the income criteria of the Legal Services Society, the people who administer Legal Aid in the province, will no longer have to pay PST on their lawyers' fees. The thanks for this appeal, the win in December and the variation of the partial stay go to a fellow named Dugald Christie, a Vancouver lawyer and tireless leader of the Access Justice Society. Related Articles: 2006 Archives > Court of Appeal Confirms Tax Judgment Back to the top of the page. The Pope Speaks Out (Part 7): The Canadian Press reports that on 20 May 2006, the Pope told a delegation of visiting Canadian bishops that Canada's low birth rate was due to "social ills and moral ambiguities that result from secular ideology." Oddly, having not babies doesn't really have much to do with social ills and moral ambiguities, and all you have to look at is the high rate of teen pregnancies to see that it's often pretty much the opposite. The Pope reported to have said that Canada is "suffering from the pervasive effects of secularism," and urged the bishops to rectify this by preaching with yet more passion. Back to the top of the page. Children's RESPs and the Contents of Affidavits: On 31 May 2006, the Supreme Court of British Columbia released two interesting judgments relevant to a lot of people engaged in family law litigation. Gold v. Romhanyi, 2006 BCSC 447 In this case, the court had the opportunity to comment on whether a parent can be required to contribute to an RESP fund. Citing a 2003 case from Manitoba for the proposition that the Child Support Guidelines do not deal with RESPs, the court held that the payor was not required to the children's RESP. While contributions made by the recipient were prudent planning for the future, she could not compel the payor to make similar contributions. A.J.C. v. R.C., 2006 BCSC 777 This website goes into some detail about how to draft an affidavit, in the "How Do I ?" section. One of the very important points that section makes is that not everything can go into an affidavit. Among other things, an affidavit cannot contain: opinion; argument; statements about what someone else told the person making the affidavit; frivolous or scandalous allegations; or, speculation. In A.J.C. v. R.C., the court was pressed to review an affidavit, almost paragraph by paragraph, to weed out the statements that were and weren't proper. The case is not helpful for a review of the law about the contents of affidavits, but it is useful to show the sort of statements that the court will and won't allow. Back to the top of the page. Harper Announces New Discussions on Same-Sex Marriage: On Friday, Prime Minister Harper announced that he would fulfill a pledge made during the recent federal election. In the fall, Members of Parliament will be asked whether they wish to "re-open debate" on the issue of same-sex marriage. The question Harper is going to table is not a direct assault on the Civil Marriage Act, the federal law passed last year that formally changed the old common law definition of "spouse" to include same-sex couples. Rather, Harper plans to ask MPs whether they want to engage in a direct assault on the act. Presumably, if the question fails, Parliament will move along with nothing more to say on the issue. If the question passes, however, the act may be subject to amendment or repeal. In what one hopes is pure coincidence, the day after Harper's announcement, President Bush chimed in on the issue from an American point of view. In his weekly radio address to his nation, Bush called for an amendment to the American constitution to bar the possibility of state legislation legalizing same-sex marriage. Bush believes that allowing lesbian and gay marriages will undermine the positive social impact of straight marriages: "marriage cannot be cut off from its cultural, religious, and natural roots without weakening this good influence on society." One is reminded of the positive influence of the straight marriages commemmorated in Married... With Children, The Osbournes and The Family Guy. Related Articles: 2005 Archives > Harper Puts Same-Sex Marriage Back on Table Back to the top of the page. Provincial Child Support Service in Effect in Kelowna: On 1 June 2006, the provincial government initiated the Child Support Recalculation Service Pilot Project in Kelowna. This project was developed very quietly by the Attorney General's office, with little public notice and virtually no coverage by the media. The following is the entire text of the notice about the project received by the Canadian Bar Association British Columbia: "On June 1, 2006, the Ministry of Attorney is implementing the Child Support Recalculation Service Pilot Project (CSRS) in the Kelowna Provincial (Family) Court, under the authority of the Family Relations Act (s. 93.3 and regulation 129/2006). "CSRS is a child support service, which will administratively recalculate child support amounts on an annual basis by applying the child support guidelines tables to updated income information. This new service represents a culmination of the original vision contemplated with the introduction of child support guidelines in 1997. CSRS will assist parents to keep their child support amounts current, in relation to the payor’s income, without the need to return to court. This will ensure that children continue to benefit from the support to which they are entitled, and that payors support obligations remain current with their ability to pay. "The CSRS is mandatory for all Family Relations Act orders for child support made on or after June 1, 2006 in the Kelowna Provincial (Family) Court. However, there are some limited circumstances in which the CSRS will not recalculate. Parents with written agreements may opt into the project. "CSRS only accepts income tax information as the source of up to date income information. When payors do not submit their income tax information as required, the service will apply a 10% increase to the income that was used to determine the current child support amount. Only recalculations that result in changes of $5 or more will result in a change in the child support amount to be paid. Special or extraordinary expenses will not be recalculated." Let's decode this.
The new project, then, will give a bureaucrat the power of a judge to change orders and agreements, interpret income tax information and impute income to a payor. This power will be exercised without the opportunity to appear before the bureaucrat and argue about what is and isn't appropriate. There is no right to make full answer and defence. While the author appreciates the expedience of the result the government plainly hopes to acheive, this project is, from the information available to the author, a breach of the principles of natural justice and is unconstitutional as a result. Related Articles: 2006 Archives > The Provincial Government's new Child Support Service Back to the top of the page. Limit to Discretion Given to Provincial Court Judges under Rules of Court: BACKGROUND: The rules of court that apply in the Provincial (Family) Court — the Provincial Court (Family) Rules — are written in very plain language that is meant to be understood by everyone. They also condense the very comprehensive rules used in the Supreme Court into fewer, simpler rules, and, in so doing, they sometimes err on the side of pragmatism. A good example of this is Rule 7, the rule about Family Case Conferences. Family Case Conferences are similar to the Judicial Case Conferences used in the Supreme Court; they are an opportunity for the parties to sit down with a judge and explore areas of agreement and alternatives to litigation. The Supreme Court rule and the Provincial Court rule have one very significant difference. In the Supreme Court, the judge cannot make an order without the parties' agreement. In the Provincial Court, the judge may "make any other order or give any direction that the judge considers appropriate," which would appear to give a judge unfettered discretion, with or without the parties' agreement. A similarly permissive provision appears in Rule 6, the rule about general appearances in court. The case of Lower v. Stasiuk, 2006 BCSC 864, is an appeal of an order made by a judge ofthe Provincial (Family) Court at a Family Case Conference. In this case, the parties had entered into a consent order about custody. Slightly less than a year later, the father applied to change the order to either give him custody of the child or expand his access to the child and a FCC was scheduled. At the FCC, the judge said this: "Nothing in the material filed, nor what I was told at this conference form the basis for ordering a hearing. There are no assertions of material changes in the circumstances since the October 21, 2004, order. The issues and difficulties raised are ones contemplated by the parties and a mechanism for resolving them is provided for with the use of the co-parenting counsellor. The issues raised before me at the Family Case Conference ought to be resolved by using the services of the counsellor. If not, the consent order provides for the use of a “qualified neutral professional” to resolve the dispute. "It is not appropriate to use the Court and the parties’ resources to hear evidence on issues that are clearly able to be dealt with through discussions between the parties, the assistance of their legal counsel, as well as the counsellor and other professionals provided for in the consent order. These issues are not of a substantive nature but rather go to varying the specifics of access due to the passage of time, as anticipated in the October 21, 2004, order." The father appealed this decision on the ground that he had been denied a fair hearing, without "the opportunity to tender evidence and to test, through cross-examination, any testimony proffered by [the mother] in relation to proof of a substantive contested issue." The Supreme Court allowed the appeal, holding that a FCC, despite the permissive nature of the Provincial Court's rules, is "not the forum for making rulings on contested substantive issues." The Supreme Court held that: "The apparent sweeping power to make orders is necessarily limited by the context of the rule itself, and by the principles of fundamental justice. It must not be read so as to confer upon the court the power to make rulings on contested substantive issues at an FCC. "The purpose of the Rules, as set forth in Rule 1, is to achieve “just, speedy, inexpensive, and simple resolutions. These objectives are not alternatives to one another; “justness” cannot be sacrificed or compromised to achieve any of the other legitimate aims." Back to the top of the page. Supreme Court of Canada Releases Judgment in "No-Fault Divorce" Case: Today the Supreme Court of Canada released its decision in the case of Leskun v. Leskun, a case which was popularly feared as reintroducing "fault" as a factor in making decisions about issues like spousal support, the care and control of children and the division of family assets. Fault has not been an issue or a consideration in divorce law for many, many years. In this case, the parties had been married for 20 years. The marriage ended when the husband suddenly broke things off, right at a time with the wife was dealing with a damaged back, a lost job, and the deaths of several family members. The wife, who was 57 at the time of the hearing before the British Columbia Court of Appeal, simply found herself unable to find a job to become financially independent of the husband. Making matters worse, the complications in her personal life were almost overshadowed by the husband's announcement that he'd met a new woman who he planned to marry and with whom he had been involved with for some time. At trial the wife was awarded spousal support of more than $2,000.00 per month. Five years later, the husband lost his job and applied to cancel support, although he held assets about about $1,000,000.00 in the United States. The husband's original application to cancel his obligation to spousal support was dismissed. His appeal of that decision was dismissed as well. It was the appeal decision which caused all the fuss, owing to some of the language used by the Court of Appeal which could be interpreted as saying that the wife's continued entitlement to receive spousal support rested on the fact that the husband had cheated on her. The day after the appeal decision, the Vancouver Sun came out with a front-page headline screaming that the notion of "fault" had been reintroduced to Canadian divorce law. Today's judgment from the Supreme Court of Canada should put a stop to all of this. The court that: "there is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse's misconduct." In other words, there is a distinction between the marital offence and the consequeneces of that offence. "Fault" stemming from the bad act may not be considered in determining issues like spousal support, however the consequences of that bad act may be considered if they are relevent to a spouse's financial situation and ability to become financially self-sufficient. Think of it like this. If a woman was a concert pianist and her husband broke her fingers, she would be unable to play the piano and unable to support herself when the marriage ended. The bad act — the abuse and resulting injury — would not be considered as a "fault" in deciding spousal support. Nevertheless, the fact is that the wife would be unable to support herself, and for that reason alone, she would be entitled to receive support. The entitlement to support stems from the consequences of the bad act, not the bad act itself. Related Articles
2004 Archives > Vancouver Sun Wrongly Suggests Demise of "no-fault" Divorce Back to the top of the page. Are the Courts Biased in Favour of Mothers? BACKGROUND: Last week, I was interviewed by Fairchild TV on the subject of the court's purported bias in favour of women. (They wanted this interview in time for Fathers' Day, if you can believe it.) The interviewer's position was that a statistical trend was de facto proof of gender bias, and I took a different view on the subject. They let me answer a few questions, but I was not able to get my complete views on the subject across. Hence this editorial. It is a fact that in the majority of custody cases, the courts award the children's primary residence to their mother. (I use the term "primary residence" for a good reason; the courts these days almost presume that parents should have joint custody of their children, but "joint custody" does not mean that the children's time is shared equally between parents. "Primary residence" refers to the home where the children live most of the time.) The courts generally award children's primary residence to the parent, male or female, that the children have spent the most time with. If that's a stay-at-home mother, then the children usually go to the mother; if that's a stay-at-home father, and there are many cases where the father has been the primary caregiver, then the children will go to the father. Decisions about primary residence are based wholly on the best interests of the children rather than on the preferences of the parents. It is a fact that children tend to be bonded most closely with the person who is their primary caregiver. It is also a fact that the primary caregiver is the person who has been most involved in children's day to day lives, making doctor's appointments, interfacing with the daycare, attending to emergencies at school and so forth. There are many reasons why mothers generally wind up working in the home and become the children's primary caregiver, while fathers wind up working outside the home.
For these reasons, and others, it is a statistical fact that more women than men adopt the role of homemaker in the family. Mothers are usually the parents who abandon a job or a career to work inside the home; fathers are usually the parent who adopt the role of provider and breadwinner. As a result of this statistical fact, more mothers than fathers are awarded primary residence of the children when the parents' relationship breaks down. Does this mean that the courts are biased in favour of women? No. It is simply a response to how each set of parents has chosen to direct their lives during the course of their relationships. The fact that a statistical trend can be identified does not mean that the courts are unfair or biased. If anything, this trend is a reflection of our society and our collective values as a society. Equity does not always mean equality. For those who still wish to complain about this, I will identify a few other trends:
Update On 23 August 2006, Statistics Canada released the results of a new study that confirms the statements above concerning women's incomes relative to men's incomes, using data collected in 2003. Among other things, the study found that:
Back to the top of the page. Group Seeks End to Sham Immigration Marriages: CBC News has reported on a petition drive sponsored by the Canadian Marriage Fraud Victim Society, a BC group among the Indo-Canadian community. The group wants the federal government to change the Immigration Act to address marriages whose sole purpose is immigration. In marriages like these, a non-citizen marries a Canadian citizen in order to expedite his or her immigration to Canada. The problem that the group is concerned with is the high divorce rate in such marriages. On occasion, the non-citizen will complete the marriage, come to Canada and then get divorced, leaving the citizen legally responsible for supporting the other spouse under a sponsorship agreement. According to the CBC, the group is seeking a three-year mandatory probationary period as a condition for obtaining permanent residency by sponsored spouses. More information about marriage and immigration issues can be found in the first chapter of the "Other Family Law Issues" section of this website. Related Articles
2006 Archives > Damages Awarded for Deception in Marriage Back to the top of the page. Site Navigation
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