Sealing a Family File
Just a quick note: As at June 1, 2012, there will be new regulations in place to deal with sealing court files in Family law cases. If you want to ensure that some or all of the contents of a family law case are not publicly accessible, it will mean a court application, even if both parties agree. The Practice Direction of Chief Justice Bauman can be found here
Posted: May 18th, 2012 under Procedure.
Tags: Chief Justice, Practice Direction, Sealing
Agreements are meant to be followed
At Henderson Heinrichs, we regularly negotiate and conclude separation agreements for our clients. Parties cannot take the provisions of these agreements lightly. When you reach an agreement with your ex-spouse, you had best stick to it. That’s what the court concluded in the recent Supreme Court of British Columbia case of Owen v. Owen, 2011 BCSC 1284.
In Owen, the court was faced with non-payment of spousal support by a wealthy husband, in contravention of the terms of a separation agreement. The court found that, in addition to losing the money itself, the wife lost certainty, security, and the ability to budget, invest and control her own financial resource, all of which she had bargained for in the agreement.
Because of this, the court agreed that the Agreement had been repudiated by the husband, and on the basis of the action brought forward, that the wife accepted that reputiation. The result was stark: the husband was required to pay back the arrears that had accrued under the terms of the agreement to the date the repudiation was accepted. Further, the wife was freed from her obligations under the agreement and was able to once again pursue a reapportionment of the very substantial family assets, something that she had given up under the agreed upon terms. Finally, as the agreement was no longer in effect, the husband was once again required to pay a higher, interim, spousal support sum which had been ordered prior to the Agreement being reached.
The wife, of course, did not have to accept the repudiation, and she could have sought a far more common remedy; namely, that the agreement be enforced. But the choice was hers, and it serves as a valuable reminder that the person breaching the agreement will rarely receive benefit for that breach from the court.
Posted: October 26th, 2011 under Agreements, Case Analysis, Procedure.
Tags: agreement, enforcement, overturn, repudiate, repudiation
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
Social Media in Family Law or Divorce Actions
Social media – Facebook, Twitter, LinkedIn and the like – is not going anywhere. It is now firmly rooted as an accepted and, for some, indispensible part of our interconnections with others. The mechanism will evolve (or devolve, depending on your view) and the companies may change, but for the foreseeable future at least, we will continue to post and tweet and poke.
In a family law context, a client’s social media trail is generally an anathema. It is a relatively permanent and immutable record, and when someone is going through the difficulties and confusion of a breakup, that record is rarely one which reflects well. Posts about an ex, about children or about the situation in general are all potentially compellable as evidence. Even if the client him or herself is maintaining absolute control over his or her posts, that control does not regulate the posts of friends and well-wishers.
In almost every case, the best course is the one which is becoming harder and harder: abstain from all social media when you are dealing with a family law dispute or divorce. It is inconvenient, annoying and, really, not fun at all. But it generally is for the best
Posted: March 23rd, 2011 under Procedure.
Tags: evidence, Facebook, LinkedIn, post, Social Media, tweet, Twitter
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
