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.

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

Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice.   It is a truism that video conferencing is not true personal contact.  It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting.

In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party’s willingness to facilitate access:  See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.

In Novlesky v. Novlesky 2009 CarswellBC 2638 British Columbia Supreme Court, 2009, at paragraph 86, the court stated that, “Mr. Lage, the children’s grandfather, is adamant about the importance of maintaining the children’s relationship with their father. I find he and the plaintiff are genuinely committed to supporting it. The children’s computers will be equipped with Skype, a program by which both visual and verbal communication occurs on the computer.”

In only one case to date, however, has the court made a clear and unambiguous statement regarding the limitations of the medium as an access method.  In C. (E.L.) v. B. (E.S.) 2009 CarswellBC 3066 British Columbia Supreme Court, 2009, the court said at paragraph 153:   “If the plaintiff moves with the children there is an emotional loss which will be suffered by them. They are only ages 7 and 4. They will grow up with limited physical and emotional affection from their father.  Skype is not enough. They will not be able to participate in activities or events with their father.”

Clearly, the courts are aware of what Skype is not.  In Gauvin v. Gauvin 2009 CarswellBC 2520 British Columbia Supreme Court, 2009, we see the beginnings of the courts exploration of what Skype actually is.  In that case at paragraph 7, Mme Justice Satanove stated that,  “The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access. Obviously, electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes.”

Here, the service is equated with telephone access.  They are both “electronic communication”  and, unfortunately, no comment is made differentiating the benefits the court sees.  Would the inability to access video conferencing have negatively affected the Plaintiff’s case?

As video conferencing technology progresses and becomes cheaper, moving from computers to smartphones, and with the emergence of 3D video, it will be interesting to see how the court positions this medium within the context of access in general.

In 2009, at the age of 52, the Defendant decided to retire. He wished to pursue a PhD and took the position that, “… he had 30 years of service so his severance pay was maximized and any further work would not increase his pension significantly.” (paragraph 19) Upon retirement, he received pension income of $4700.00 per month.

The Plaintiff sought a permanent order for spousal. At issue was whether the Defendant’s obligation to pay the Plaintiff maintenance would be lessened due to his unilateral decision. The short answer is, ‘not by much’.

In making his decision, Mr. Justice Punnett reviewed the case of Gajdzik v. Gajdzik, 2008 BCSC 160, 50 R.F.L. (6th) 390 (B.C.S.C. [In Chambers] in which the court, somewhat nebulously, found that, “…there are no general principals applicable to variation of spousal support on voluntary retirement, that it depends on the individual circumstances of each case” [paragraph 21] The case does, however, provide some direction in that the court did review the motivation for retirement and whether it was reasonable in light of the ongoing obligation.

In applying this guidance to the case before him, Mr. Justice Punnett stated that if the decision to retire was motivated by a desire to avoid maintenance, it would most likely impute income [paragraph26]. He further found that if the retirement was not voluntary – that is, due to illness, economic circumstances, or employer actions, maintenance would likely be reduced [paragraph 27]. He found that Mr. Szczerbaniwicz’s decision was discretionary and based upon his personal wishes and inferred that the decision was at least partly motivated by a desire to avoid his maintenance obligation. The court found that, though the Defendant could not return to his previous income level, he would certainly be able to obtain of $90,000.00 per annum and imputed income to him on that basis. It is interesting that the court, in finding that the Defendant’s decision to retire was partly based on a desire to avoid maintenance, did not assess his income back to its original level, but rather to what the Defendant could be earning were he to return to the workforce.

After the parties’ separation July 2000, they entered into an agreement in August 2000 providing for joint custody and for Mr. Trignani to pay maintenance. The parties filed against each other in spring 2001, each claiming sole custody and child maintenance. The Ontario Superior Court of Justice pronounced a consent order in April 2001 that the parties have equal time with the child (the mother’s access to be supervised) and Mr. Trignani was to pay child support. Notwithstanding this order, for the next five years, Mr. Trignani had the child in his care for the majority of the time.

The court order was was varied in 2006 by Minutes of Settlement which provided for joint custody and for Mr. Trignani to pay child maintenance which appears to have been a set off between his and the appellant’s guideline income obligations.

The tax court held that, despite interim agreements reached by the parties between 2001 and 2006, Mr. Trignani at all material times had a live claim for child support and sole custody. The fact that he agreed to a settlement in 2006 which provided that he pay net maintenance to the respondent did not detract from the viability of his claim prior to that point and did not extinguish his right to claim the monies expended on pursuing his child support claim as a tax deduction.

In cases where joint custody is sought or where sole custody is a reasonable consideration, the tax considerations raised in Trignani v. Canada should be considered when deciding whether to claim child maintenance. This case could have far reaching implications. It remains to be seen whether the decision will be appealed and how the decision will be woven by lower courts into the fabric of Canadian family law.