What does it take to Separate?
At Henderson Heinrichs, we are often asked to seek a determination that the spouses in a marriage have no reasonable prospect of reconciliation. Normally, this is not a particularly contentious issue. However, there are circumstances in which a declaration such as this have far-reaching consequences.
In Wolfman-Stotland v. Stotland, 2011 BCCA 175, (CanLII) the court grappled with the question of a spouse’s capacity to separate. In this case, the claimant wife and the respondent husband were 92 and 93 years old respectively, and the wife applied for a s.57 declaration that there was no reasonable prospect of reconciliation. In opposing that application, the Husband sought and received an order that a doctor provide an opinion as to the Wife’s capacity to make the – though the doctor found that the wife had the capacity to instruct counsel regarding the financial aspects of the divorce claimed, she “did not have the capacity to form the intention to live separate and apart from her husband” [at paragraph 14]. The Chambers judge defined the relevant issue as whether the wife had the ability to both manage her affairs and instruct counsel. The Court found that she did not.
The Court of Appeal disagreed. Upon re-examination of the issue, the Appeal Court determined there should not have been a dual test. The ability to manage ones affairs was determined to be a higher capacity than the one needed to instruct counsel and the court overturned the Chambers Judge’s decision.
The Husband’s application to appeal to the Supreme Court of Canada was dismissed, and the test for the capacity necessary to separate therefore remains a very basic one.
Posted: October 18th, 2011 under Case Analysis, Divorce, Family Court, Procedure.
Tags: capacity, declaration, s.57, Section 57, separation
What’s in a name?
The courts are not waiting for the legislature when it comes to the wording of orders. Changes proposed in the White Paper on Family Relations Act Reform have not yet been adopted as law; however, in keeping with the report’s recommendations, it is becoming more and more common for Judges and Masters to clarify that terms such as “Custody”, “Guardianship” and “Access” should be avoided and replaced with “Parenting Time” and “Parental Responsibilities”. This is progress. The words describing the relationship between parents and children are not merely reflective – they have a role in creating that relationship. Children have a right to language which not only accurately describes the circumstances, but which supports and fosters a healthy environment.
Posted: February 25th, 2011 under Family Court, Parenting, Procedure.
Tags: access, custody, Guardianship, Parenting Responsibilities, Parenting Time
Court Scheduling
I fully understand the multitude of factors involved in scheduling appearances before Masters and Judges in the Supreme Court. Cases settle, lawyers argue beyond their predicted times, people arrive with ex parte and short leave applications. But is there nothing that can be done to improve the system we have? Clerks are in a better position than virtually anyone else to make educated predictions as to the length of the cases they are dealing with and could inform the court registry on a regular basis. A system of priority could be issued which would at least provide clients with a marginal amount of information on which to base a decision as to whether or not to seek an adjournment. The current system of having lawyers seated, uninformed, around the court registry, waiting, does not seem to be particularly efficient.
Posted: August 5th, 2010 under Family Court, Procedure.
Tags: courts, delay, scheduling, waiting
Reassessment of Trial Decisions
The court in R.A.C. v. V.L.C., 2009 BCSC 1417 recently reviewed the law regarding when it can and should reconsider a trial decision. Under normal circumstances, a trial decision is geared towards ending the parties’ disputes and deciding the issues on a final basis. There are, however, occasions where the Judge’s trial decision requires reassessment based upon facts which were not available to the parties during the trial. This can only happen if a court order has not yet been entered. However, in that event, the court has an unfettered discretion to reconsider its decision but should do so exceedingly sparingly. Further, the court in R.A.C. acknowledged that the underlying rationale of the court’s discretion is prevent a miscarriage of justice from occurring.
A reassessment is a very rare occurrence and all efforts should be made to ensure that the issues and evidence are properly canvassed at trial.
Posted: December 1st, 2009 under Case Analysis, Family Court, Procedure.
Tags: orders, R.A.C. v. V.L.C., reassessment, trial
