Review Hearing vs. Variation of an Order for support
The BC Court of Appeal just released a decision called Domirti v. Domirti, 2010 BCCA 472, which considered an appeal by the husband from an Order that he pay indefinite spousal support to his wife. The basis on which the husband made his appeal was the manner in which the judge treated the application at the Supreme Court level; that is, that the judge made a mistake in treating his application as a variance instead of a review. The Court of Appeal agreed with him and reversed the judge’s order.
Previously, the parties have been separated since 1994. The initial child and spousal support order was made in 1996, and varied in 2004. The 2004 Order specified that, anytime after a year had passed, either party could seek a review hearing on the issue of spousal maintenance. The husband sought that review in 2005, and then again in 2009 when it was alleged the youngest child of the parties was no longer a child of the marriage. The husband sought to terminate spousal support at that point.
At the 2009 application the judge indicated she was relying on Section 17 of the Divorce Act, which relates to the variation of support orders. She concluded the husband ought to keep paying indefinite support to the wife in the amount of $1250.00 per month.
On appeal, the Court of Appeal noted that Section 17 of the Divorce Act is irrelevant in the context of review hearings and should not have been relied on by the judge. Instead, at a review hearing, the judge should have conducted a “reconsideration” of entitlement and quantum of support having an eye to the Spousal Support Advisory Guidelines, which the Court of Appeal concluded would have assisted the husband in terms of the duration of support.
This decision clarifies the test that a party must satisfy when bringing an application for a review of support as opposed to the test that must be met on an application to vary support. Procedurally, this distinction is important to note as the legal test is markedly different.
Posted: October 27th, 2010 under Case Analysis, Child Support, Divorce, Procedure.
Tags: appeal, Domirti, Maintenance, review, Support, variation
Joining Provincial and Supreme Court actions
In a situation where two different family law actions have been commenced dealing with the same parties – one in B.C. Provincial Court and the other in the Supreme Court of British Columbia – it is often the case that a party may wish the matters to be unified and joined in a single court. A shift from one court to another can have financial and strategic ramifications and the question is therefore raised, how can this be accomplished? In the recent B.C. Provincial Court of B.C. case of R.(J.A.) v. K.(K.M.), 2010 CarswellBC 1629, 2010 BCPC 98, Judge E. Rae clarified that the Provincial Court has no power to transfer an action to the Supreme Court. She succinctly noted that “The Provincial Court is a Court of statutory jurisdiction, and any authority to transfer the file to the Supreme Court must come from a statute or a rule” (paragraph 5). She then went on to find that there was not statutory jurisdiction or legislation permitting the court to enable that transfer and that, “It may be open to the Supreme Court to assume jurisdiction over the matter, given that they have inherent jurisdiction and parens patriae jurisdiction, but that is a decision that must be made by the Supreme Court.” (paragraph 12). In short, while the actions may be transfered and joined, the ruling has to come from the Supreme rather than from the Provincial Court.
Posted: September 9th, 2010 under Case Analysis, Procedure.
Tags: join, joinder, Jurisdiction, Provincial Court, Supreme Court, transfer
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
