What If No One Follows An Order?
In the recently decided case of Newton v. Luettger, 2011 BCSC 995, the court made an observation which, while simple, is also far reaching in its effects. The case involved a 2005 trial custody order which provided that the parties would share roughly equal time with their two children. The parties concurred at the hearing that the equal division of care never occurred and that the mother regularly had the children in her care for greater than 60% of the time. The mother sought a variation of the trial custody order, relying on the difference between the order and the actual care circumstances as a material change in circumstances.
Mr. Justice R.D. Wilson stated found that,
[9] The argument advanced by the Claimant is based on the proposition that the failure to comply with the terms of an order is equivalent to “a change in the condition, means, needs or other circumstances of the child of the marriage…”. To me, that is a novel proposition. No authority was cited in support of it. Absent binding authority, it is not a proposition which commends itself to me.
[10] Non-compliance with the provisions of an order is not the equivalent of a change in circumstances. The Claimant’s application for a variation order is dismissed because she has failed to establish that there has been a change in the condition, means, needs or other circumstances of the children, or either of them.
Interestingly, neither party seems to have explored the prospect that, while the non-compliance did not in and of itself constitute a change in the children’s circumstances, the care actually received by the children since the pronouncement of the trial decision and their related needs would, in fact, have given rise to a difference. It remains a question as to how far a determination such as Mr. Justice Wilson’s can reach. It is common for parties to seek a variation based on the failure by the other to live up to the terms of an order, and it seems logical that the law should both direct the actions of the parties and also accurately reflect those actions when they change.
Posted: August 10th, 2011 under Case Analysis.
Tags: change, circumstances, custody, variation
Document Disclosure
During the course of your matrimonial file you will be asked by your lawyer to produce a number of documents. These will include personal documents relating to your finances, including but not limited to bank account statements, credit card statements and other what you could perceive as personal material that you may or may not want your estranged spouse to have access to. In dealing with support issues, document disclosure with respect to income and expenses becomes relevant. Often, innocent omissions with respect to the disclosure of documents can be used by the other side’s lawyer as fodder to allege that you have failed to disclose or are guilty of blameworthy conduct giving rise to retroactive adjustments and corrections with respect to child or spousal support. These are all things that you want to avoid like the plague.
In order to make your lawyer’s job easier, which of course is something we all want to do, and to minimize your legal costs, which is something that you will most definitely want to do, we recommend that you as the client take the steps to collect all of the relevant documents as sought by your lawyer as early in the process as possible. If at all possible, you can organize these documents chronologically, which again will save you time and legal fees and will make your lawyer’s life much earlier (more appropriately your lawyer’s secretary’s life much easier). Full and frank disclosure with respect to the financial assets and financial means of each individual allows a proper resolution of matters either by court order or negotiated settlement.
Initially, your lawyer will likely request that you give us the documents back six months predating date of separation. This practice allows for us to look at a pre-separation pattern of behavior to ensure that there has been no changes post separation. When we request documents of the other side, this is the usual scope of how far back we will ask. There may be circumstances where going back further will be necessary either based on information provided to us by you during the course of our interview process or alternatively, based on what we see in the initial request for documents.
It is important that you discuss disclosure with your lawyer and follow their advice on that issue.
RAH
Posted: July 14th, 2011 under Uncategorized.
Interim Custody and Status Quo
What happens on interim custody applications when there is no existing court order? In granting an interim order for custody, the court is obliged to consider the status quo. Preservation of the status quo pending trial is generally considered to be in the best interests of the child unless there is a compelling reason to change the existing custodial situation. In Leung v. Leung, [1998] B.C.J. No. 2614 (BCCA), Justice McFarlane stated that in interim custody matters, the court should maintain the status quo in the absence of reasons to the contrary. In general, the party seeking to alter a child’s status quo must present evidence to show that the status quo is unsatisfactory and not in the best interests of the child and therefore should be changed.
In Prost v. Prost 1990 CanLII 907 (B.C.C.A.), [1990] 30 R.F.L. (3d) 80, the court held that the governing principle is that the status quo is to be preserved and there is to be “minimum change, uprooting, or disruption at the initial or interim stage prior to trial”. This overarching principle is that the status quo should change only when there is very “cogent evidence” to suggest that the status quo should not be maintained. The court went on to say that courts should be reluctant to change the status quo when children are happy in a stable and secure setting. The need of young children to feel secure in every way cannot be overemphasized.
The courts have held that the status quo arrangement becomes increasingly more significant in determining what is in the best interests of a child the longer the arrangement has been in place. This is especially true where the status quo has created a stable and secure environment for a child and there is no evidence to suggest that the child is not doing well in that environment.
N. Ahluwalia
Posted: May 18th, 2011 under Custody and Access.
Tags: access, custody, interim, Leung, Prost, quo, status, status quo
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
