Court of Appeal Releases Decision on Hearing Day Fees

Readers may recall the decision in Vilardell v. Dunham, released in the summer of 2012 and discussed in my post "Court Services Suspends Hearing Day Fees in Supreme Court." In this family law case, which was heard with submissions from the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia appearing as intervenors, the trial judge decided that the pricey hearing day fees charged by the Supreme Court were unconstitutional because:

• access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
• the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning; and,
• the hearing day fees imposed by the province are a barrier to access to justice.

The result was appealed by the Attorney General, and the Court of Appeal has just released its decision in the matter.

In a nutshell, the Court of Appeal has determined that government has a legitimate interest in imposing hearing day fees and other court fees in order to recover some of the expense incurred in maintaining the courts and the apparatus necessary to sustain them. Such fees would be an unconstitutional barrier to justice, however, were it not for the indigency provisions of the Supreme Court Family Rules which allow litigants to apply for an exemption to some of all of these fees. Rule 20-5(1) provides that:

If the court, on application made ... before or after the start of a family law case, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government ...

However, this isn't quite good enough. The court observed that:

"In this case, the constitutional inconsistency consists of an under-inclusive exemption from hearing fees, which restricts it to people who would be defined as impoverished. ... An enlarged interpretation of the indigency provision is necessary to uphold the constitutionality of hearing fees and remove a barrier to court access."

In the end, the court held that the with the wording of Rule 20-5(1) tweaked just a bit to include mere need as well as impoverishment, the government may continue to charge hearing day fees:

"The enlarged scope of the exemption in Rule 20-5, then, should be read as saying 'impoverished or in need'. The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption."

Thanks to my colleague Agnes Huang for letting me know that this judgment has been released.

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The Validity of Same-Sex Marriages

There's a new and entirely unnecessary controversy brewing about same-sex marriages, and the media headlines I've seen suggest that Canada is somehow changing its position on same-sex marriage as a result of the divorce action of a foreign same-sex couple who married here. Apparently a Department of Justice lawyer argued that their marriage wasn't valid in the first place.

Okay, hold on people. Take a breather. It's not what the media seems to think, and the lawyer from Justice was right.

This is a problem about the "conflicts of laws" — the law dealing with how the laws of one sovereign state interact with the laws of another sovereign state — not a change in policy of a conservative government. The two basic rules about the validity of foreign marriages are these:

1. The legal capacity of a couple to marry is governed by the law of the "matrimonial domicile," the state where the spouses wind up living after they are married. (If the law of Country A says that people named John can only marry while wearing pink underwear in months beginning with the letter "M", this requirement of marriage applies to all of the residents of Country A, including those who got married in Countries B, C and D.)
2. The formalities of the marriage ceremony are governed by the law of the place where the marriage occurs, the "lex loci celebrationis." (If the law of Country B says that marriages may only be performed by mechanics waving squirrels, a marriage in Country B must be performed by a mechanic waving a squirrel to be valid in Country B or in Country A.)

In other words, a foreign same-sex couple will only enter into a valid marriage in Canada if their home country, the country which is their matrimonial domicile, recognizes that same-sex couples can marry. If the home country doesn't recognize the fundamental legal capacity of gays and lesbians to marry, a Canadian marriage, though legal and recognized here, won't be legal and recognized there.

To be clear, this isn't a result of the Harper government and a nefarious and regressive intention to undermine the marriages of awesome people like Dan Savage, it's about the basic rules of international law ... and those are somewhat beyond the influence of the Canadian government. (Dan, this isn't a problem with the laws of our country, it's a problem the with laws of your country.)

Have a look at my website for more information about the validity of marriage generally, including the validity of foreign marriages.

Update: 13 January 2012

The CBC reports that Canada is amending the Civil Marriage Act to ensure that the marriages of foreign couples are recognized in this country and quotes the Ministry of Justice thusly:

"I want to make it very clear that, in our government’s view, these marriages should be valid. We will change the Civil Marriage Act so that any marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada," he said in a statement.

"This will apply to all marriages performed in Canada. We have been clear that we have no desire to reopen this issue – both myself and the prime minister consider this debate to be closed."

This will not, of course, affect the international conflicts of law rules or compel countries with less egalitarian laws to recognize Canadian marriages, but it will clear up any confusion about the domestic validity of the marriages of foreign same-sex couples.

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Provincial Legislature Resumes Sitting

The Legislative Assembly resumed sitting today, commencing the 5th Session of the 39th Parliament and concluding a recess that began on 31 May 2012, nine months ago. Given the proximity of a provincial election — fixed for Tuesday 14 May 2013 — the Legislature is expected to only sit for four or five weeks.

Don't hold your breath for any amendments to the Family Law Act. Although rumour has it that the Ministry of Justice is compiling a list of potential changes, nothing is likely to be tabled in a pre-election session that will be dominated by other priorities. The soonest any amendments will be introduced will be the fall legislative session beginning in October 2013.

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Amendments Amended: Rules of Court adjusted for guardianship applications

Two new Orders in Council have just been published implementing further amendments to the amendments previously released for the Supreme Court Family Rules and the Provincial Court Family Rules. A third order in council amends the recently released Family Law Act Regulation. The reason for these amendments stems from s. 51(2) of the Family Law Act which, as I am sure everyone by now recalls, requires that certain additional evidence concerning the best interests of the child be provided  when applications are made for the appointment of a person as the guardian of a child.

Provincial Court Family Rules

The PCFR are amended (PDF) to include a new Rule 18.1, "Guardianship Orders." The rule provides that an affidavit in Form 34 must be prepared for guardianship applications, to which must be attached a criminal records check, probably by way of a CPIC printout, as well as records checks from the Ministry for Children and Family Development and the Protection Order Registry. The affidavit required the applicant to disclose:

• his or her relationship to the children of whom guardianship is sought;
• any incidents of family violence affecting the children;
• any involvement in court proceedings under the Child, Family and Community Service Act, the Family Relations Act, the Family Law Act or the Divorce Act concerning children in the applicant's care; and,
• any history of criminal convictions and the existence of any current criminal charges.

 You can find a link to the original amendments to the PCFR in my post "Family Law Act: Changes to Rules of Court."

Supreme Court Family Rules

The SCFR are amended (PDF) to include a new Rule 15-2.1, "Guardianship Orders," to the same effect as the PCFR 18.1, with a new affidavit in Form F101.

 You can find a link to the original amendments to the SCFR in my post "Family Law Act: Changes to Rules of Court."

Family Law Act Regulation

The Family Law Act Regulation is amended to include a new Form 5, "Consent for Child Protection Record Check," to be used to obtain a record check from the Ministry for Children and Family Development.

You can find a link to the Family Law Act Regulation in PDF format in my post "Regulations to Family Law Act Published."

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Last British Columbia Decision on Parental Support Released

The Supreme Court has just released its decision in the very last claim for parental support that will ever be heard in this province.

In Anderson v. Anderson and others, a mother sued her five adult child for parental support. The case began in 2000 with an interim order that each of the children pay their mother $10 per month. The mother lost her appeal of the interim decision, and the case lay dormant until 2008 when she filed a Notice of Intention to Proceed. Although the case was again beset by delay, it was at last heard at a summary trial in the summer of 2012.

Without getting into the nuts and bolts of the decision, the court held that none of the children had the means to pay parental support to their mother once their incomes had been applied to cover the needs of their own families, and that even if the children had the means to pay parental support, the mother was not morally entitled to support as a result of her historic treatment of the children and their present estrangement from her.

Section 90 of the Family Relations Act, the section which allowed parents to sue their adult children for support, was repealed on 24 November 2011 when the Family Law Act received royal assent. Although the essential concept of parental support has a long history in British Columbia, being first implemented in the 1920s in the economic turmoil following the end of the first World War, the present legislature seems to have considered the section to be the cause of too much domestic strife and to provide too little return for too much costs to be allowed to survive. Justly so.

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CLE Family Law Act Course Coming to Victoria and Kelowna

The Continuing Legal Education Society's two-day course, "The Family Law Act: Everything You Always Wanted to Know But Were Afraid," just ran in Vancouver and is about to be repeated live in Victoria and Kelowna. The program takes an in-depth look at the three areas of the law that will be most changed by the Family Law Act — the division of property and debt, the care of children and family violence — from a practice-oriented perspective, and is taught by leading judges, lawyers and psychologists including:

• Scott Booth
• barbara findlay QC
• Lisa Holmes Wyatt (chair)
• Anna Laing
• Georgialee Lang
• Gordon Kopelow
• Dr Mary Korpach
• Morag MacLeod
• The Honourable Justice Donna Martinson
• The Honourable Judge Paul Meyers
• Colin Millar
• Mary Mouat QC
• Barbara Nelson QC
• Karen Nordlinger QC
• The Honourable Judge Margaret Rae
• Eugene Raponi QC (chair)
• The Honourable Judge Meg Shaw
• Ronald Smith QC
• Dr Alan Wade
• Master Barbara Young

The course features two keynote speakers, and wraps up with a Q&A session with two senior members of the Ministry of Justice's Civil Policy and Legislation Office who were intimately involved with the development of the new legislation. The keynote speakers are:

Jerry McHale QC, a former assistant deputy minister in the Ministry of Justice and now the Lam Chair of Law and Public Policy at the University of Victoria, who speaks about the development and implementation of the Family Law Act on day one. 

Norman Picard QC, a prominent family law lawyer with the Edmonton firm Barr Picard, who talks on day two about the family law reforms implemented in his jurisdiction and what British Columbia lawyers can learn from the Alberta experience with similar legal concepts.

In Victoria, the course runs on 7 and 8 February 2013 at the Hotel Grand Pacific; in Kelowna, the court will be held at the Delta Grand Okanagan on 21 and 22 February 2013. For more information, contact the CLE program lawyer for the course, Nadia Myerthall, at nmyerthall@cle.bc.ca.

For those of you mindful of such things, the course will take care of all of your CPD credits, including the two-hour ethics component, in a single sitting.

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