As of Friday, March 8, 2013, Henderson Heinrichs will be moving to the 20th floor at 1188 West Georgia Street, Vancouver, B.C. It’s only temporary while our regular office undergoes a facelift.
In the recently released decision of Zwiers v. Thompson, the BC Supreme Court looked at the priority ranking of charges registered against the family residence. There were three charges filed: the wife filed a certificate of pending litigation in May 2010, the Family Maintenance Enforcement Program registered a charge in June 2011, and the husband’s lawyer filed a charge for his fees in July 2011. The husband’s share of the sale proceeds was held in trust until the determination of these charges was made.
Subsequent to the sale of the family residence, the wife claimed repayment from the husband’s share of the net sale proceeds for child support arrears, mortgage payments, property taxes, utility payments and renovation expenses.
The issue before the Court was whether the wife’s certificate of pending litigation, filed before the husband’s lawyer’s charge, provided authority for paying additional funds to her even though she had already received her share of the net sale proceeds. The lawyer’s position was that the wife’s CPL provided no further security beyond her one half share of the net sale proceeds.
The Court ruled in the wife’s favour, finding that the CPL had been pleaded broadly enough to encompass her one half share of the proceeds and potentially any claims for additional sale proceeds.
The Court looked at the wife’s statement of claim to determine what relief was sought in the language asking for a CPL. In particular, the Court found that because her pleadings stated that she asserted an interest in “all or part” of the husband’s interest to the residence (and all other family assets) by way of a trust claim she claimed, effectively, an interest in the entire family residence. That statement was enough to grant her priority over the husband’s lawyer’s charge.
The Court declined to determine whether the monies claimed by the wife were legitimate charges, however, as it required further evidence to do so.
This case tells us that the manner in which pleadings are written is of the utmost importance – as they may be referred to in any stage of the action. Making a claim for a share of family assets should include a trust claim over all, or part, of the assets.
We are often approached by parents who tell us that they want the court to consider their child’s wishes in the determination of their family law matter. It is possible for the court to take this into consideration through a “Views of the Child Report” (“VOCR”) prepared pursuant to section 15 of the Family Relations Act. A VOCR is an assessment prepared for the court for regarding the child’s views on particular issues. The child’s preferred school, residence or parenting arrangement might be issues appropriate for such an assessment. The report can be made by either a mental health professional such as a psychologist or a psychiatrist or by a lay person such as a family justice counselor trained to speak with children on such issues.
The VOCR usually involves one interview with each of the child’s parents individually, and then two separate interviews with the child on his or her own . One of the reasons that the child is interviewed twice is to ensure neutrality – the interviews are arranged such that each parent brings the child to one of the the interviews. Each assessor has his or her own assessment style and procedure and the costs can vary dramatically depending on what type of assessor you retain and how in-depth the report is.
The report will generally not comment on the Child’s views. While other types of reports, for example a Custody and Access report, might conclude with the assessor’s opinions and recommendations, a VOCR will simply endeavour to accurately report the wishes and opinions of the subject child.
Things to keep in mind about a Views of the Child Report:
- A Views of the Child Report is not usually recommended for young children. It does depend on the maturity level of the particular child. However, the general rule of thumb is approximately age 12.
- Professionals have raised many objections to these reports and the impact on the children by involving them in the parenting dispute. Involving the children may make them anxious and feel as though they need to choose one parent over the other or that they are saddled with making this momentous decision that even both their parents together can’t seem to work out. Children often express in these reports that they don’t want to be responsible for making any decisions and that they are worried to express their real opinions as one parent or the both may be upset by their views.
- The report is intended as an information tool for the court. The court can make any decision that it believes is in the best interests of the child and does not have to follow any of the preferences the child relates in the views of the child report.
- If any parental alienation or parental coaching happening in either home then the report could be ineffective and a full custody and access report may be more appropriate.
If you are thinking about obtaining a Views of the Child report please contact one of the family and divorce lawyers at Henderson Heinrichs to discuss the options and whether it is appropriate for your situation.
Great site: www.financialresources.ca – a collection of calculators and financial resources. Under the calculator tab, there are a series which are divorce and family law related – spousal and child support calculators. Very convenient.
Posted: November 6th, 2012 under Uncategorized.
Tags: calculators, child support calculator, Divorce Resources, family law resources, Financial Resources, Financialresources.ca, spousal support calculator
What rights does a court have over child related decisions when an interim custodial parent has been named? This question, in the context of the custodial parent’s decision to move out of the country with the child, was examined by the BC Court of Appeal in Johnson v. Jessel, 2012 BCCA 393.
In the context of a Hague Convention application (an application to the court to have a child returned after having been taken out of the court’s jurisdiction), the court had to deal with the questions of whether it still had jurisdiction over the issue. The argument raised was that, because the child was now resident in another country, that new country had the power to determine the child’s residency. The BC Court of Appeal rejected that proposition. It took the position that “… when custody is a live issue, and a court awards custody on an interim basis, the court does retain custody rights under the Convention …”. [para.49] Because of this, the court went on, it is not necessary for a court to order a non-removal clause after making an interim custody order: the fact that the court retains some degree of custody under the Hague Convention, “…removal of the child is unlawful within the meaning of the Convention…” [para.50]
In other words, an interim custodial parent does not have unfettered discretion to move the child wherever he or she chooses. The BC courts, having taken jurisdiction, will retain that jurisdiction until a final determination.
The Vancouver divorce lawyers at Henderson Heinrichs have the knowledge and experience to deal with inter-jurisdictional issues, including child abduction.