Kevin Heinrichs of Henderson Heinrichs was featured in a recent article in the Vancouver Province by Stephanie Ip and Keith Fraser regarding same sex divorce in British Columbia. With the advent of the Civil Marriage of Non-Residents Act, same sex couples married in British Columbia who are unable to get a divorce where they reside can apply for that divorce in British Columbia without the previously required one year residence. Heinrichs’ point in the article is that, while there might be a brief spike in these types of divorces, any built up backlog of qualified parties will soon be dealt with and it will soon be business as usual.
It is important to understand that once someone declares bankruptcy, all his or her rights to bring on claims in court with regard to property vest in the Trustee of that bankruptcy. Section 30(1)(d) of the Bankruptcy and Insolvency Act, RSC 1985, c.B-3 states that,
30. (1) The trustee may, with the permission of the inspectors, do all or any of the following things:
(d) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt;
In Tinant v. Tinant, 2003 ABCA 211, the Alberta Court of Appeal reviewed the question and determined that, not only could an undischarged bankrupt not bring on a matrimonial property claim, that bankrupt could not even be assigned the right to bring on that claim by the Trustee. In the words of the the Honourable Mr. Justice Ritter, who penned the decision: There are good reasons why the capacity to act is vested in the trustee. First, the assets of the bankrupt are in the control of the trustee. If the proceeding is unsuccessful it is likely that there will be a costs consequence. A costs order against the bankrupt will generally be meaningless. Further if any of the property of the bankrupt is available to satisfy the costs award then it is likely that the property should have been turned over to the trustee. Also, if the bankrupt has legitimate means to raise costs, those means would generally be better spent on contribution to his or her creditors.  Second, one of the purposes of cost awards is to ensure that parties will carefully consider whether there is any merit to a proceeding. When a party is bankrupt that careful consideration is easily set aside as the party is insulated from costs consequences as he or she has already lost all his or her assets to the trustee. Also the party against whom costs consequences have some meaning, the trustee, has already assessed the risks and has determined that the potential benefits of the proceeding are outweighed by the risks of a costs award.
On August 16, 2013, the Canadian Government announced that the Civil Marriage of Non-Residents Act has been brought into force. The new Act allows same-sex couples who live outside of British Columbia to apply for divorce in the British Columbia Supreme Court. The Canadian Parliament passed the Civil Marriage Act in 2005, officially recognizing same-sex marriage in Canada. Many same-sex couples who resided in jurisdictions with no recognition of same-sex marriage subsequently travelled to British Columbia and the other Canadian provinces to wed. Those couples who later wished to become divorced found themselves in a legal conundrum: they could not divorce in their home country because they were not recognized as legally married, but they also could not divorce in Canada because they were not “ordinarily resident” in Canada as required under Canada’s Divorce Act. The Civil Marriage of Non-Residents Act remedies that problem, allowing non-resident same-sex spouses who have lived separate and apart for a period of at least one year to apply for divorce in the province in which they were married. If you are a same-sex spouse living in a country that does not recognize your British Columbia marriage, and you are thinking about a divorce, contact our lawyers at Henderson Heinrichs LLP for advice about obtaining your divorce in British Columbia.
The Family Law Act (“FLA”) will largely come into effect in British Columbia in March 2013, and many areas of family law will see substantial changes. Over the next weeks, we are going to be looking at what effect the FLA is going to have on one of those areas, that of Assisted Reproduction (“AR”). AR is an expansive area of law covering such topics as surrogacy, artificial insemination via sperm donation, egg donation, in vitro fertilization and cytoplasmic transfer. AR touches on complex social issues such as same sex parenting and particularly lesbian motherhood, the rights of children, the rights of women, the rights of non-biological parents and the strength of the biological and non-biological parents’ intentions. Many AR technologies and techniques were either unknown or in their infancy when the Family Relations Act (“FRA”) was first passed in 1978, and the FRA was silent on many matters which now affect a great many people. Simply by acknowledging the complexities and addressing the area, the FLA is far ahead of the FRA. This is not to say that there will be no disagreements and conflicts – AR issues are nuanced and difficult. But British Columbia will now have a starting point, something which has been sorely lacking.
An example of the courts using a straight application of the Child Support Guidelines in a high income situation: In Roche v. Chen, 2012 BCSC 1290, the BC Supreme Court reviewed the circumstances under which an interim child support order could depart from the guidelines. Section 4 of the CSG’s allows that,
“[w]here the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and
(iii) the amount, if any, determined under section 7.
The court found that the concept of “condition, means, needs and other circumstances” has been predominantly interpreted, in the case of wealthy families, as indicating “…a more subjective analysis based upon current budget and pre-separation standard of living …”, and a reflection of the children’s reasonable needs. It went on, however, to remind that even in the case of wealthy parent, clear and compelling evidence to depart from the Guideline amounts needs first to be adduced.
In Roche, the court found that the difference between the table amounts and the child’s reasonable needs were “relatively modest” when compared to the payor’s means and the Master ordered full guideline maintenance.