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
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
Will Common-Law Mean the Same as Married Under the Proposed New Family Relations Act?
Yesterday, BC Attorney-General Mike deJong released a White Paper, which contains proposals and recommendations for a revised Family Relations Act. Family law in BC is regulated primarily by the federal Divorce Act and the provincial Family Relations Act. The Family Relations Act has not been extensively reviewed since the 1970’s. There are, naturally, hundreds of recommendations made in the White Paper, but one that is causing quite a stir is the proposed change in the treatment of property in common-law relationships.
Currently under the Family Relations Act, persons who have cohabited in a marriage-like relationship for a period of two years are deemed to be in a common-law relationship. This provides them with certain rights upon separation, although those rights are nowhere near those afforded to married couples. Primarily, persons in a common-law relationship can claim spousal support within one year of separation and of course child support in the event there are children; however, there are no rights to the other person’s property unless a claim for trust is brought by way of litigation. Trust claims are complex and fact intensive, making them expensive to litigate.
The new proposals would change the rights of common-law spouses in a significant way. Once the couple has passed the two-year cohabitation mark and become officially common-law, the parties’ property, pensions, presumptively belongs 50/50 to each of them, save and except in particular circumstances, most notably that pre-relationship property would not be subject to this division. In addition, the parties’ post-cohabitation debts, irrespective of who incurred them, would also be split 50/50.
In addition, another category of cohabitating spouses is proposed in the event a common-law couple has a child, but has yet to reach the two-year milestone. In the White Paper, this is described as a couple who have a child and are in “a marriage-like relationship of some permanence”. They would then become subject to the 50/50 division on separation. What exactly that means is not set out in the White Paper, but is sure to be litigated early on if adopted in the changes to the Family Relations Act.
What does this mean? Obviously it is too early to tell, but our initial suspicion is that many couples intent on cohabiting will be proactive and engage in written agreements contracting themselves out of these provisions. We envision that these agreements would be similar to marriage (aka pre-nuptial) agreements, in an effort to protect assets from the new provisions of the Family Relations Act.
Certainly the proposed changes to the Family Relations Act as they relate to common-law spouses indicate that the legislature intends to treat cohabiting spouses as something more akin to married spouses than in the current state of affairs.
-JMH
Posted: July 19th, 2010 under Common Law, Divorce, Legislation Analysis, Procedure.
Tags: British Columbia, Family Relations Act Reform, Legislation, Reform, White Paper
JCC Scheduling Problems
Here’s an issue: Rule 60E(6) of the Rules of Court (Rule 7-1(8) of the Family Rules which come into effect in a few days) dictates that a Requisition and Notice of Judicial Case Conference and a copy of Parts 1, 2, 3, and 4 of a Form 89 (soon to be F8) Financial Statement must be served on a party at least 30 days before the date set for the JCC. In the event that a JCC is scheduled for only few days after service, the only recourse is to attend and complain at the very JCC that was improperly scheduled. There should be a requirement to provide proof of service or delivery, as the case may be, at least three weeks before the conference, failing which it would be struck.
Posted: June 21st, 2010 under Legislation Analysis, Procedure.
Tags: 60E(6), 7-1, Delivery, Family Law Rules, JCC, Judicial Case Conference, Rules, Rules of Court, Service
This Post is not Privileged
Privileged communication is defined in the in the law.com dictionary as “statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court”. It has been established that the phrase “Without Prejudice”, written at the head of correspondence identifies it as being privileged. It is a far too little known fact, however, that the simple act of typing the words “Without Prejudice” at the top of a letter does not endow it with the magical power of invisibility. You will, for example, inevitably be disappointed if you write those words at the head of an insulting letter to your erstwhile spouse expecting that letter to be omitted from evidence. A document is not privileged because you label it as such. Rather, the privilege relates to the character of the document. This means that not all letters labeled “Without Prejudice” are as advertised. It also means that some letters are privileged without being branded.
The law of privilege is well reviewed in the Alberta case of Leonardis v. Leonardis, 2003 CarswellAlta 940. There are three major types of privilege that parties to a family action might encounter: The first is privilege enjoyed by communication relating to legal advice between solicitor and client. This is most clearly embodied in correspondence between a lawyer and her client. The second is the privilege attached to documents that have been created primarily to further litigation. A little less defined than the first, this applies to such documents as expert reports. The third type of privilege attaches to communications in furtherance of settlement, including verbal and written discussions, offers and proposals.
The first two forms of privilege belong to the one party in the litigation partaking in the communication or obtaining the documentation. The third form, however – that of settlement communication – belongs to both the parties. This means that while the privilege of an expert report can be waived by a party wanting to use that report in court, the privilege attached to settlement negotiations can only be waived by both parties.
Because labeling something “Without Prejudice” does not change its privilege status, make sure you know what that status is before you mail the letter or hit the send button.
Posted: May 11th, 2010 under Case Analysis, Procedure.
Tags: Leonardis, Priviledge, without prejudice
