Website Begins Integration of New Rules

On 1 July 2010, the current Supreme Court Rules of Court will be replaced with two new sets of rules, one for general civil litigation and one for family law matters (PDF). This isn't the sort of tinkering we're used to seeing every summer, this is a stem to stern overhaul with brand new rules and new court forms. Even the names of the parties are changing!The Rules of Court are tremendously important. They guide the conduct of every aspect of the law suits before the court, from how service is effected to the scheduling of applications to the...

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More Cuts to Legal Aid, Part 2

I have just learned that a number of family law lawyers and criminal law lawyers in Kamloops have formed a committee and voted to withdraw duty counsel services in response to the recent cuts to legal aid including the closure of their regional Legal Services Society office, and the impact the cuts will have on access to justice. The spokespeople for the committee are Graham Kay (250-374-1989) and David Dundee (250-828-9998).The strike will begin on 11 January 2010 and affect Provincial Court criminal law matters and Provincial Court and Supreme...

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More Cuts to Legal Aid, Part 1

The axe has fallen on the Legal Services Society once more. LSS, the organization which provides legal aid in this province, was first hit with funding cuts in 2002. Those cuts resulted in the scaling back of family law services and a refocusing of LSS's delivery model away from hands-on litigation assistance toward litigation advice and web- and telephone-based legal information services. On the bright side, this change resulted in a significant improvement of LSS's primary website and the development of a fantastic website on family law issues....

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What's "Without Prejudice" and What's Not

You'll often see certain lawyer's letters marked "without prejudice," and it's not always clear what "without prejudice" means, particularly for people who aren't lawyers. The question has recently come up in a file of mine, and I thought I'd take the opportunity to explain things."Without prejudice" protects settlement proposalsBecause of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest...

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What Custody and Guardianship Really Mean

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.It's difficult to tell the difference between the rights and duties custody involves from the rights and duties associated with guardianship. This confusion is aggravated because the Divorce Act only talks about custody, but the Family Relations Act talks about both custody and guardianship, and because we get a lot of misleading...

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New Website for Children

The BC Justice Education Society, formerly the Law Courts Education Society of BC, has launched a new website, www.kidsbc.ca, aimed at children whose parents are splitting up. The website offers lots of information about separation and the legal process, as well as information about children's experience of and feelings during separation, how separation may impact on their home life, and how their parents might react to separation. I am very impressed with this website.The new website should nicely complement the provincial government's existing...

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Section 15 Reports

"Custody and access reports," "custody assessments" and "section fifteen reports" are some of the names given to reports prepared pursuant to s. 15 of the Family Relations Act. The purpose and scope of these reports can be a bit confusing, because they seem to be treated differently in the Provincial Court and the Supreme Court, because different sorts of people prepare them, and because the scope of s. 15 is really quite broad.The Family Relations ActSection 15 says, in part, this:In a proceeding under this Act, the court may, on application,...

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Government Announces Implementation of New Family Law Rules

The provincial government announced today that new Supreme Court family law rules will come into effect on 1 July 2010.The new rules for family law matters are one of the recommendations flowing from the Family Justice Reform Working Group's 2005 report, A New Justice System for Children and Families (PDF). A draft of the new rules was posted on the website of the Justice Review Task Force in 2008 for comment and consultation.The new rules are intended to reduce expense by gearing the complexity of the litigation to the complexity of the case,...

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Alberta Minister Pronounces upon the Proper Raising of Children

The CBC has reported that Alberta's Finance Minister, Iris Evans, has pronounced upon the raising of children in a recent speech to the Economic Club of Canada. According to the CBC, Minister Evans said that good parenting means that "when you're raising children, you don't both go off to work and leave them for somebody else to raise."Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income!...

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New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.These search terms are all about marriage and divorce. (Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws...

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Why you DON'T want a cohabitation agreement

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments I've made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information. I've also added a new post, "Cohabitation Agreements and the new Family Law Act," about why unmarried couples probably DO want cohabitation agreement.Questions about cohabitation...

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Rights of Access Trump Right to Breastfeed

The Globe & Mail has today reported on an interesting case out of the Ontario Supreme Court which addresses a difficult problem: what should the court do when a mother's breastfeeding regimen interferes with the other parent's time with the child?This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his...

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BC Supreme Court Issues Important Judgment

Varga v. Varga, 2009 BCSC 416 concerns, among other things, the determination of a husband's obligation to pay child support for two children of his wife's previous relationship and child support for a child of their own relationship when custody of that child was shared.This case involves two tricky questions about child support: how child support should be calculated when custody is shared; and, how a step-parent's child support should be calculated when someone else also has a responsibility to pay child support. Normally, child support is calculated...

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Family Relations Act Review Update

Frequent readers of www.bcfamilylawresource.com and this blog will recall the review of the Family Relations Act conducted by the Attorney General's office in 2007.Rumour had it that the review had come to a peaceful death in the Spring of 2008 following a final public consultation about family violence and the involvement of children in the court process. Not so!To the contrary, I have been informed that work behind the scenes continues and that the FRA Review is alive and well. Essentially, the fruit of the 2007/2008 consultations is being distilled...

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Supreme Court of Canada Releases Important Decision

On 19 February 2009, the Supreme Court of Canada released its judgment in Rick v. Brandsema (2009 SCC 10), a case about the duty of honesty and fair play spouses owe to each other when they are negotiating a separation agreement.The court's judgment in this case follows the reasoning it established six years earlier in Miglin v. Miglin (2003 SCC 24), a case about separation agreements and spousal support. In Miglin, the court decided that the rules about commercial contracts shouldn't apply to separation agreements because of"the particular ways...

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New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals. (Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)>> is it adultery if you are separated>>...

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What's with that support case from Quebec?

A spousal support case out of Quebec is all over the headlines lately. The thing is, the case doesn't mean very much from a British Columbia perspective, and it's nothing for anyone in BC to worry about, and this doesn't always come through when you're reading newspaper digests of the case.The Quebec case involves a common-law relationship and a claim for spousal support. The claimant is arguing that Quebec law breaches her Charter rights as it doesn't allow common-law couples to claim spousal support. That's not the case in BC, where our Family...

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Best of Random Answers

And now, more of my personal favourites from "Random Answers to Random Search Terms.">> divorce for lack of sexUnfortunately for some, a lack of sex in a marriage isn't a ground of divorce under the Divorce Act. If might be a reason for a divorce, but it's not a legal ground to end a marriage.A lot of people think a marriage can be annulled because the marriage wasn't consummated. Not so. The case law on this subject says that simply not having had sex is not enough... one of the spouses must actually be unable to have sex, either because...

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2008 In Review, Part 3: Case Law Roundup

This is an overview of some of the more interesting cases decided in 2008. The summaries below aren't a proper digest of each case, they just focus on the one or two issues which made the case interesting. H(SM) v. P(R), 2008 BCSC This case is a nice update on the law of retroactive child support. The wife sought a retroactive order going back to 2002 based on undisclosed increases in the husband's income. The court said that the simple payment of child support, which the husband had been doing all along, creates a presumption that the payor...

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New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals. (Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)>> paying for university after separation>>...

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Bad News for Legal Aid

The CBC has reported that the Legal Services Society is in dire financial straits and will be slashing the funding provided for family law and criminal cases, cutting 38 staff positions including lawyer positions, and closing the Vancouver family law clinic. This is really quite tragic, as it seems that LSS was only just beginning to recover from the devastating budget cuts imposed by Gordon Campbell's government in 2002 which saw the entire board of LSS resign in protest. Over the last few years, LSS had begun to set up new community clinics,...

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2008 In Review, Part 2: Non-Governmental Initiatives

Two of the more important developments in family law in 2008, outside of government-driven legislation and law reform, involved the Spousal Support Advisory Guidelines and the BC Parenting Coordinators Roster. The Spousal Support Advisory Guidelines Professors Rollie Thompson and Carol Rogerson released the final version of their paper, Spousal Support Advisory Guidelines, in July, three and a half years after the release of their Draft Proposa...

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Big Love Busted!

The CBC has today reported that Winston Blackmore and James Oler, the rival leaders of the religious community of Bountiful, British Columbia have each been charged with polygamy, an offence under the Criminal Cod...

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Best of Random Answers

Long-term users of my website will recall the surprisingly popular feature "Random Answers to Random Search Terms" which disappeared during the website's recent renovations. Random Answers had it origins in the odd, and sometimes downright bizarre, search terms which somehow managed to find my website and raised questions that I sometimes decided to answer. Here are a selection of some of my personal favourite...

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2008 In Review, Part 1: Legislation and Rules Reform

Legislation and Rules Reform There were two interesting developments in the laws and rules relating to family law litigation in British Columbia in 2008, and both related to the close of public consultations on significant potential reform...

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Pro Bono Law BC Expands Services

Pro Bono Law British Columbia has just announced an expansion of its services with the introduction of the Wills & Estates Roster Program. The new roster is a welcome addition to PBLBC's other programs, such as the Family Law Roster Program and the Court of Appeal Roster Program.PBLBC is a non-profit organization funded by the Law Society, the Law Foundation and other groups. It operates as a referral destination from clinic-based services like UBC's Law Students' Legal Advice Program, the Salvation Army's Pro Bono Program and the Access Justice...

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The Melnick Model of Joint Custody

Regular readers and those who have had the misfortune of attending my presentations on the new Family Law Act will recall some of my concerns about how the provisions of the new provincial legislation with respect to the care of children will interact with provisions of the federal Divorce Act for custody and guardianship. Just such an issue arose in the recent Supreme Court case of C.K.B.M. v. G.M. In this case, Mr. Justice Melnick was asked to vary an order for custody and guardianship made before the introduction of the Family Law...

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Court Deals with Difficult Issue of Interim Orders for Access

In the recently released Provincial Court case of J.C.P v. J.B., the court addressed one of the most challenging problems arising from the transition from the Family Relations Act to the Family Law Act: what do you do when an interim order gives someone access without addressing custody or guardianship? The problem comes from s. 251 of the Family Law Act, which says this:(1) If an agreement or order, made before the coming into force of this section, provides a party with(a) custody or guardianship of a child, the party is a guardian of the child...

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