Expert Report Critiques
According to a new B.C. Supreme Court decision, expert critiques and reviews of Section 15 Custody and Access reports should not be admitted as evidence at trial, nor should the testimony of that expert him or herself. In Hejzlar v. Mitchell-Hejzlar, 2010 BCSC 1139, Mr. Justice Burnyeat questioned, “… whether it was appropriate to have the critique by [the expert] introduced into evidence”, and asked whether, ” … the opinion of [that expert] relevant to the issues which were before the Court?” (at paragraph 4).
At first blush, it might be difficult to understand why a critique of a section 15 report would not be relevant to issues before the court; namely, the best interests of the child involved. , The court ins Hajzlar, however, astutely pointed out that a critique of a Section 15 Report does not add any evidence on the questions of the children’s interests. In critiquing reports, a psychologist , “(a) … must limit comments to methods and procedures; (b) … must not state any conclusions unless they have done their own individual assessments; and (c) … must restrict themselves to comments as to their sufficiency and accuracy” (at paragraph 11). A critique which does not include any independent assessment gives evidence solely as to the validity or lack thereof of the original report. That validity issue is not before the courts. The Judge determined that the proper way to call the validity and reliability of a Section 15 report into question would be to cross-examine the author of that section 15 report. He reflected that an expert critique might be an invaluable resource in preparing for such a cross examination.
Mr. Justice Burnyeat did leave open the option of a party commissioning a second custody and access report. If such a report were prepared, it would certainly bear on the issues before the court and we suggest would likely be admissible.
Posted: August 16th, 2010 under Case Analysis, Custody and Access, Procedure.
Tags: Critique, Custody and Access Report, Expert, S.15, Section 15 Report
Don’t Wait Too Long, Part II
There seems to be a spate of “retroactive child maintenance for adult children” cases coming out of the courts. The seemingly immortal Hartshorne case is once more in the forefront, with the parties appearing before the B.C. Court of Appeal and (hopefully) finally resolving all of the issues arising from their ill fated 1989 marriage agreement. This case went up to the Supreme Court of Canada and then was sent back down to the Supreme Court of BC level to determine the issue of child support. Orders were made which were then appealed again by Mr. Hartshorne to the B.C. Court of Appeal. The interesting fact here is that Ms. Hartshorne, after years of having been buffeted from court to court, was trying to collect arrears of child maintenance for her eldest son. She brought that claim on in 2007 when the child was 19 years old. Mr. Hartshorne took the position that “the trial judge did not have jurisdiction to entertain the respondent’s application for retroactive and prospective support for the eldest child because the son was no longer a child of the marriage when the application was made in November 2007.” (at paragraph 67). The court decided, however, that the 2007 application for arrears was simply a resurrection of an earlier action, and because of this stated, ”I am not persuaded the trial judge lacked jurisdiction to hear the application for increased retroactive and prospective child support for the son even though he was over the age of majority at the time because the application was first made by the respondent when the son was still a child of the marriage.” [at paragraph 70] The moral is that you should at least start any application for arrears before your child stops being defined as such by the Act. Unless the Hartshornes appeal.
Posted: July 14th, 2010 under Case Analysis, Child Support.
Tags: arrears, child maintenance, Child Support, Hartshorne
Don’t Wait too Long to Apply for Retroactive Child Support
A recently case in the BC Supreme Court highlights the need for parents receiving child maintenance to be vigilant in protecting that right. In Piccini v. Dahlgren-Piccini,2010 BCSC 859, the court reiterated the fact that a parent cannot seek retroactive maintenance for an adult child. In Piccini, the payor, Mr. Piccini, had understated his income for several years. The court awarded the recipient parent, Ms. Piccini, retroactive maintenance the younger her two children, who was 17 at the date of hearing. The court found, however, that, “ One of the difficult aspects of the current application is that while the defendant seeks retroactive variation, she cannot apply for any retroactive child support for Tiffany, who was no longer a “child of the marriage” after May 2009. The defendant does not have standing to bring an application on behalf of the adult child, Tiffany, who had withdrawn from parental care” (at paragraph 3). This means that despite having incurred expenses on behalf of the child dating back prior to her reaching adulthood, the recipient parent could not obtain any relief in that regards. Had Ms. Piccini brought on her application a year earlier, the result might have been quite different. One question which was not canvassed is whether the adult child would have had standing in her own right to bring on a claim for retroactive maintenance against her father.
Posted: July 7th, 2010 under Case Analysis, Child Support.
Tags: child maintenance, Child Support, Piccini, retroactive
Early Retirement – What Happens to Spousal Support?
An interesting case out of the B.C. Supreme Court this year dealing with a party responsible for spousal support deciding to retire early. In Szczerbaniwicz v. Szczerbaniwicz, 2010 CarswellBC 759, 2010 B.C.S.C. 421, the Plaintiff and the Defendant separated in 2006 after a 31 year marriage. In 2007, the parties entered into a consent order setting out that the Defendant was to pay to the Plaintiff $3300.00 per month in interim spousal support. The Defendant was a Lieutenant Colonel with the Canadian Armed Forces and earned an income of approximately $118,000.00 a year. The Plaintiff’s income earning abilities during the marriage had been hampered by the frequent moves required by the Defendant’s military career. After separation, the Plaintiff began working as a receptionist and later as a processing technician at a hospital, earning approximately $31,000.00 a year.
In 2009, at the age of 52, the Defendant decided to retire. He wished to pursue a PhD and took the position that, “… he had 30 years of service so his severance pay was maximized and any further work would not increase his pension significantly.” (paragraph 19) Upon retirement, he received pension income of $4700.00 per month.
The Plaintiff sought a permanent order for spousal. At issue was whether the Defendant’s obligation to pay the Plaintiff maintenance would be lessened due to his unilateral decision. The short answer is, ‘not by much’.
In making his decision, Mr. Justice Punnett reviewed the case of Gajdzik v. Gajdzik, 2008 BCSC 160, 50 R.F.L. (6th) 390 (B.C.S.C. [In Chambers] in which the court, somewhat nebulously, found that, “…there are no general principals applicable to variation of spousal support on voluntary retirement, that it depends on the individual circumstances of each case” [paragraph 21] The case does, however, provide some direction in that the court did review the motivation for retirement and whether it was reasonable in light of the ongoing obligation.
In applying this guidance to the case before him, Mr. Justice Punnett stated that if the decision to retire was motivated by a desire to avoid maintenance, it would most likely impute income [paragraph26]. He further found that if the retirement was not voluntary – that is, due to illness, economic circumstances, or employer actions, maintenance would likely be reduced [paragraph 27]. He found that Mr. Szczerbaniwicz’s decision was discretionary and based upon his personal wishes and inferred that the decision was at least partly motivated by a desire to avoid his maintenance obligation. The court found that, though the Defendant could not return to his previous income level, he would certainly be able to obtain of $90,000.00 per annum and imputed income to him on that basis. It is interesting that the court, in finding that the Defendant’s decision to retire was partly based on a desire to avoid maintenance, did not assess his income back to its original level, but rather to what the Defendant could be earning were he to return to the workforce.
Posted: June 11th, 2010 under Case Analysis, Spousal Support.
Tags: Gajdzik, Maintenance, Retirement, Spousal Maintenance, Spousal Support, Support, Szczerbaniwicz, Voluntary Retirement
Child Maintenance Claims: Can a Payor Claim Legal Fees as a Tax Deduction?
Interesting case out of the Tax Court this month: in Trignani v. Canada, [2010] T.C.J. No.141, the court determined that a man who had joint custody of his child but who was paying net maintenance to the children’s mother, was entitled to write of those legal expenses he incurred to pursue his child support claims. In this case, the appellant, Mr. Trignani, was pursuing sole custody of his child, which the court determined to be a bona fide claim.
After the parties’ separation July 2000, they entered into an agreement in August 2000 providing for joint custody and for Mr. Trignani to pay maintenance. The parties filed against each other in spring 2001, each claiming sole custody and child maintenance. The Ontario Superior Court of Justice pronounced a consent order in April 2001 that the parties have equal time with the child (the mother’s access to be supervised) and Mr. Trignani was to pay child support. Notwithstanding this order, for the next five years, Mr. Trignani had the child in his care for the majority of the time.
The court order was was varied in 2006 by Minutes of Settlement which provided for joint custody and for Mr. Trignani to pay child maintenance which appears to have been a set off between his and the appellant’s guideline income obligations.
The tax court held that, despite interim agreements reached by the parties between 2001 and 2006, Mr. Trignani at all material times had a live claim for child support and sole custody. The fact that he agreed to a settlement in 2006 which provided that he pay net maintenance to the respondent did not detract from the viability of his claim prior to that point and did not extinguish his right to claim the monies expended on pursuing his child support claim as a tax deduction.
In cases where joint custody is sought or where sole custody is a reasonable consideration, the tax considerations raised in Trignani v. Canada should be considered when deciding whether to claim child maintenance. This case could have far reaching implications. It remains to be seen whether the decision will be appealed and how the decision will be woven by lower courts into the fabric of Canadian family law.
Posted: May 19th, 2010 under Case Analysis, Child Support.
Tags: agreements, child maintenance, Child Support, deduct, deduction, Divorce, minutes of settlement, tax, Trignani, Trignani v. Canada
