Court of Appeal Releases Decision on Standard of Reasons for Judgment

In a new decision, Shannon v. Shannon, the Court of Appeal discusses the adequacy of trial judges' reasons for judgment as a ground of appeal. "Reasons for judgment" are a judge's written decision about the facts of a case, the law which applies to the issues in dispute, and the judge's disposition of the issues in dispute by applying the law to the facts.

A judge's decision at trial can be appealed, however the appeal must establish an error of law or a gross misapprehension of the evidence to succeed; you don't get to appeal a decision just because you don't like it. In Shannon, the appellant claimed that the trial judge erred in law by "failing to provide adequate or sufficient reasons" for his valuation of an asset, and that in the absence of more fulsome reasons she could not assess whether the judge had made a mistake in his judgment.

The Court of Appeal dismissed the appeal after a thorough review of the applicable law. These are the highlights of the court's analysis, quoted directly from the decision:

> A trial judge has a duty to give adequate or sufficient reasons for his or her decision. Failure to give adequate or sufficient reasons for judgment is an error of law. (Willick v. Willick, [1994] 3 SCR 670; F.H. v. McDougall, 2008 SCC 53)

> The function of reasons for judgment is to explain what the trial judge has decided and why he or she reached that decision. (R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); R. v. R.E.M., 2008 SCC 51)

> Reasons for judgment should demonstrate "a logical connection between the 'what' – the verdict – and the 'why' – the basis for the verdict," when they are read as a whole in the context of the evidence and the live issues at trial, and the submissions of counsel. (R.E.M.)

> In the civil context, the duty to give reasons is to:

1. justify and explain the result;
2. tell the losing party why he or she lost;
3. provide for informed consideration of the grounds of appeal; and,
4. satisfy the public that justice has been done.

(R. v. Walker, 2008 SCC 34)

> An appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor is a failure to give adequate reasons a free standing basis for appeal. ... Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been. (F.H.)

> There is no free-standing right of appeal on the adequacy or sufficiency of a judge's reasons. Moreover, even where the logical connection between the evidence and the decision cannot be discerned ... appellate intervention will not be justified if the record itself permits meaningful appellate review. (R. v. Gagnon, 2006 SCC 17)

In Shannon, evidence about the value of the asset was available from the record of the Supreme Court proceedings in the form of an expert's appraisal and a rebuttal report prepared by another expert. Said the Court of Appeal:

"It is evident the trial judge was faced with a wide range of potential share values, calculated under two different valuation approaches... He understandably recognized his decision as to the value of the shares must be arbitrary to some degree, given the uncertainty associated with the Company's future. In choosing a fair market value of $500,000, it may be inferred that he began his analysis with [X]'s valuation of the shares as it was the only opinion before the court on that issue. However, he also appears to have preferred [Y]'s more optimistic portrayal of the Company's potential. This is evident in his finding that the Company would not be sold and had value as an ongoing concern. On the other hand, it is also apparent that he accepted that the unique features of this business and the uncertainties in the ... market limited its marketability and therefore its value as a going concern. In my view, the valuation of $500,000 takes into account these competing considerations. Thus while the 'why' for the trial judge's valuation of the shares could have been expressed more clearly, in my view it is adequately explained when examined in the context of the evidentiary record.

"The reasons for judgment in this case are to be distinguished from those considered by the Court in Crepnjak v. Crepnjak, 2011 BCCA 177... In Crepnjak, the necessary findings to support the chambers judge's conclusions could not be discerned from his reasons or the evidentiary record and, accordingly, the appeal was allowed and a new hearing ordered."

To boil this all down, the judge at trial has a duty to provide reasons for judgment which allow the parties and the general public to understand her decision and why she reached that particular decision. An appeal based on the insufficiency of reasons for judgment will only succeed where the reasons for a decision cannot be discerned from both the reasons for judgment and the record of the trial proceedings.

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Marriage and the Material Girl/Boy

The LA Times has reported on a study published in the Journal of Couple & Relationship Therapy, "Materialism and Marriage: Couple Profiles of Congruent and Incongruent Spouses," which found that "couples where both spouses are materialistic were worse off on nearly every measure." Says the Times:

"Statistical analysis of the research showed that couples who say money is not important to them score 10% to 15% better on marriage stability and other measures of relationship quality than couples who are openly materialistic.
"The study also found that couples in which only one partner is materialistic fare better than couples in which both partners are materialistic."

Well, they do say that money can't buy happiness, and that's certainly true during a relationship and after its collapse. I see some unusual things as a divorce lawyer, but it's always a surprise when I run into people who are more troubled by the potential damage to their material wealth than the prospect of losing contact with their children; what's not surprising at all is that people with this sort of attitude would have especially fractious marriages.

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Supreme Court Releases Decision on Vexatious Litigants

The Supreme Court has helpfully summarized the law on vexatious litigants in a new case, Vancouver City Savings Credit Union v. Randhawa.

In a nutshell, this issue has to do with the court's authority to control its own process and the parties before it. It can happen, but doesn't with great frequency, that a person will use the court system to initiate frivolous actions and applications seeking impossible orders without a real foundation in law. Sometimes these are the people whose make claims that the RCMP is attempting to control their thoughts through their toaster, and in the course of their claim against the RCMP also sue the Attorney General, Premier, Prime Minister and Queen for good measure. At other times, these are the people who have a legitimate grievance but lack the judgment to distinguish between the trivial and the substantive. Both sorts of litigant tend to appeal the judgments they don't like and appeal lost appeals, and their litigation gets stuck in an endless cycle of losing applications and losing appeals; these litigants lack the ability to understand that when the court says "enough," the court really means enough.

Section 18 of the Supreme Court Act provides an instructive gloss on the court's inherent jurisdiction to control its own processes and says the following, under the heading Vexatious Proceedings:

"If, on an application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court."

In other words, the court can require that a litigant not start an action, or bring an application in an action, without getting permission first.

For people stuck in endless meretricious litigation this can be a boon! Normally, you see, a litigant has the right to sue whomever he or she wishes, and, once the action is commenced, the right to apply for whatever orders strike his or her fancy whenever the moon is in the right phase. Normally, however, people exercise good judgment and are somewhat restrained by cost to bring only those actions and applications which are in fact meritorious.

In the Vancouver City Savings case, the credit union applied for a s. 18 order that the respondents:

"... be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against VanCity, or any of its officers, agents or employees without leave of the court."

The judge began his analysis quoting from the 2010 Supreme Court decision in Holland v. Marshall (I've put the key elements in bold):

"[7] To succeed on an application pursuant to s. 18, the applicant must demonstrate:

1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism. (British Columbia) Public Guardian and Trustee v. Brown, 2002 BCSC 1152.

"[8] In Lang Michener v. Fabian ... the Ontario High Court described the characteristics of a typical vexatious proceeding:

(a) bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions; and

(g) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action."

After a relatively succinct review of the lengthy history of proceedings, the judge said this:

"It is as apparent to me ... that the respondents have persisted in bringing 'a raft of doomed applications'. They have done so in the face of clear judicial pronouncements, directions or advice explaining the lack of jurisdiction of this court to set aside final orders or to revisit issues that have already been decided. ...

"It is apparent to me that in the face of the judicial criticism, advice and direction the respondents will simply continue to bring applications in this proceeding which have no objective or reasonable basis. They are acting habitually and persistently in the face of judicial direction and criticism."

As you might expect from concluding comments like these, the credit union obtained the order sought.

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Family Law Act to Be Introduced This Fall

The text of the Lieutenant-Governor's Speech from the Throne has just been published, and, in the context of a discussion about improving access to justice, says this:

"The government will introduce the new Family Law Act during this session, to promote early resolution of family law problems."

There you have it; change is coming! Here's some background reading:

• My post "The Present Effect of the Proposed Family Law Act" discusses how a bill becomes a law and takes effect.
• Another post, "White Paper Digest," summarizes the highlights of last summer's white paper, the discussion published by the government describing areas of potential reform.
• And you can also read the white paper (PDF) itself.

If the new bill looks anything like the white paper, the law of domestic relations in this province is going to undergo a stem to stern overhaul which will place British Columbia at the forefront of law reform in Canada.

Visit the Legislative Assembly's website at www.leg.bc.ca/39th4th/index.htm to track the introduction and progress of the bill through the legislature.

Update: 14 November 2011

Bill 16, the Family Law Act, was introduced in the provincial legislature today. I've summarized the new legislation in a new post, "Family Law Act Introduced!"

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CBABC Launches Legal Aid Campaign

The Canadian Bar Association, British Columbia branch has this morning launched a campaign (PDF) to pressure the provincial government to restore funding to legal aid. The newly-minted We Need Legal Aid website reviews some of the problems resulting from the cuts to legal aid and aims to build public support for the restoration of funding though social media.

The CBABC's effort follows up on the March 2011 release of the final report (PDF) of the Public Commission on Legal Aid, a joint project of the CBABC, the Law Society of British Columbia, the Law Foundation and other groups.

Legal aid in British Columbia is administered by the Legal Services Society, a non-profit organization funded primarily by the provincial government. The government began to implement a far-reaching series of budget cuts beginning in 2001 which have had a profound effect on the society's family law legal services (PDF), to the point where legal representation is only available where there is a safety risk, a denial of contact with a child or a risk that a child will be taken out of the province.

Please, read the commission's final report and take the time to visit the We Need Legal Aid website and get involved in the campaign.

Click on the "Legal Aid" label below for more information about the travails and tribulations of LSS over the last few years.

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Mexican Proposal for the Ultimate Starter Marriage

The BBC has reported on a novel bill introduced to Mexico City's Legislative Assembly of the Federal District by Lizbeth Rosas Montero, a member of the Party of the Democratic Revolution, which would allow newly weds to enter into a marriage contract giving them two years to decide whether to call it quits or renew their vows. Says the BBC:

"Half of all marriages in Mexico City currently end in a split.
"[Montero] believes the contracts, allowing couples to 'renew or dissolve' the marital link after a pre-arranged term, would lead to more harmonious relationships and reduce the workload on family judges.
"Terms governing healthcare provision, the way children are educated, how much money was needed to support the family, and how dependents would be looked after in the case of a break-up would be set out in advance."

This is an interesting idea, which would seem to take the most useful features of a marriage agreement and add a fixed date when the parties would review not just the continuing fairness of their agreement but the continuing value of their relationship. Although I'm certainly in favour of reducing the court's workload, I'm not sure the idea has much potential for Canada given the ease with which couples are presently able to divorce under our present no-fault system.

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Changes to Vancouver Chambers Practice in Effect Monday

Chambers practice in the Supreme Court's Vancouver registry has been extraordinarily difficult for some time now. "Chambers" is where applications for orders before trial and applications for final orders on affidavit evidence are heard, and on any given day in Vancouver there might be forty or more applications set to be heard by a master and a twenty or more applications, usually lengthy ones, to be heard by a judge. However, each day only one judge and one master are assigned specifically to chambers and there's only four and a half hours in the court day!

Long wait times are nothing new but it has been increasingly difficult to get dates for lengthy chambers applications in reasonable time, and the overflow list of applications set for a specific date that could not be put before a judge or master is itself overflowing. (The court's list of available dates is publicly available on the court's website.) Opinion among the bar is mixed as to the cause, but three theories have risen to the top of the pond:

1. there aren't enough judges or masters;
2. court services is underfunded and there aren't enough registry staff; or,
3. the new Supreme Court Rules are somehow to blame.

Personally, I'm more inclined to number two; I know there are times in New Westminster and Vancouver where the court registry is drained of staff to serve as clerks in court and there still aren't enough staff!

Regardless of the ultimate cause, Chief Justice Bauman has announced (PDF) changes coming into effect in Vancouver on Monday 3 October 2011 intended to address these problems.

1. Registry staff will automatically bounce all applications where an application record is not received before the deadline prescribed in the court rules — 4:00pm on the business day that is one full business day before the date set for the hearing — rather than have them bounced by the court clerk.
2. Masters' chambers will be split into two lists, general civil and family law, and an extra master will be assigned to chambers when the list is full.
3. All applications set for judges' chambers under two hours will be sent off to Courtroom 31 to be referred to other courtrooms as judges become available, rather than having everyone mill around in the court registry.
4. Unscheduled applications, usually applications for short leave and for urgent orders, will go up to judges' or masters' chambers as before, but will be heard at the discretion of the presiding judge or master rather than automatically heard after short matters are heard.

I'm not sure what the practical results of 1, 3 and 4 will be, but I am excited about 2. This is the way things used to be until family and civil chambers were merged a number of years ago, and the assignment of an extra master will really help to clear the chambers lists.

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Court of Appeal Releases Decision on Child Support Liability of New Parent to First Family

The Court of Appeal has just released an interesting decision on a payor's application to suspend her child support obligation to her first family as a result of being on maternity leave for a new child in her second family. (As you might imagine, it is usually men who are the payors of child support and the situation before the court in McCaffrey v. Paleolog requires the happy coincidence of a mother paying child support while becoming pregnant in a new relationship.) The appeal in this case was complicated by legal issues concerning the history of the proceedings, but the reasons from the Court of Appeal are clear enough that we can focus on the law that will be of more general interest.

When a mother paying child support takes maternity leave as a result of a pregnancy in a new relationship, she will usually want relief from the child support obligation to her first family for at least the period she is in receipt of reduced income from maternity benefits. This raises three critical questions for the recipient.

• Is the pregnancy a "material change in circumstances" justifying the payor's application to vary her child support obligation?
• If child support will be reassessed, should income be imputed to the mother under s. 19(1)(a) of the Child Support Guidelines on the basis that she is underemployed while on her reduced income?
• To what extent should the first family suffer as a result of the payor's choices in a subsequent relationship?

Normally, the courts would leap to impute income to a payor who decided to take a year off work or voluntarily took a position with lower pay. In cases like this, however, there is arguably some necessity to the payor's choice, and the answer to these questions lies in the case law interpreting s. 19(1)(a) of the Guidelines.

This is what that subsection says (I've put the important part in italics):

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

And this is what the Court of Appeal said (you should read the case yourself for the background to the court's analysis):

Imputing Income

Income may be imputed to a parent who is intentionally underemployed unless the parent establishes under s. 19(1)(a) of the Guidelines that the needs of the new child require her to remain at home.

Exception for Children Under the Age of Majority

Having a newborn child or a child of very young age will generally suffice to meet the Guidelines requirement, however "childbirth does not provide an automatic relief from a parent’s child support obligations," and the circumstances of the payor must be examined to determine eligibility in each case.

Guidelines for Imputing Income

The circumstances of the payor should be evaluated using the following factors, which the Court of Appeal, in a 2004 case called Watts v. Willie, borrowed from a 2000 case from the Manitoba Court of Appeal, Donovan v. Donovan:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...

"2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

"3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

"4. Persistence in unremunerative employment may entitle the court to impute income.

"5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

Limit to Relief from Child Support

Where a payor is found to be entitled to the exception for a newborn or very young child, any suspension of her child support obligation must be only for a reasonable period of time, bearing in mind:

1. the financial situation of the payor's present family, since it is the needs of that child which support the s. 19(1)(a) exception, and
2. the financial situation of the first family, where the non-payment of support has a particularly harsh effect.

"The circumstances may compel an almost immediate return to work or may provide for full or part-time in-home assistance."

Summary

I can do no better than the court's own summary of its reasoning, found at paragraph 58 of the decision.

"In summary in a case like this:

"1. income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the needs of a child require the parent to remain at home;

"2. it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but

"3. childbirth does not provide an automatic relief from a parent’s child support obligations;

"4. the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan ... ;

"5. any period of non-support must be reasonable in the circumstances."

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Fall Legislative Calendar Published

The Legislative Assembly has published its calendar for the fall session, formally known as the fourth session of the thirty-ninth provincial parliament. The Speech from the Throne will be made on Monday 3 October 2011 and the legislature will sit until 24 November 2011, with time off during the weeks of October 10th and November 7th.

With any luck, a bill will be tabled proposing new legislation to replace the Family Relations Act, as foreshadowed by last year's white paper (PDF), at some point during this session. The only question, I think, is whether the government will introduce such significant, marquee legislation when the current Attorney General has been appointed on an interim basis only.

I will publish a link to the page on the Assembly's website where you can monitor the introduction and status of new bills when it becomes available.

For more information about the white paper, click on the "White Paper" label below; I've previously written about the legislative process and the current effect of the proposed law here.

Update: 3 October 2011

You can monitor the status of new bills introduced in the legislature on this page: www.leg.bc.ca/39th4th/index.htm

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Parental Support in British Columbia

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 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.

CBC, the Victoria Times Colonist and Global (video) have reached reported, with varying degrees of accuracy and inaccuracy, on a case currently before the British Columbia Supreme Court involving an aged mother's claim for parental support from her adult children. Parental support claims are exceedingly rare, likely because of the enormous degree of family dysfunction which must exist before a parent brings a lawsuit against his or own children, and as a result such claims are poorly understood. Let me set the record straight.

Background

Legislation on parental support first entered the books in 1922 in the midst of the financial tumult following the end of the First World War, in the form of the Parents' Maintenance Act. Since there wasn't a Hansard transcript back then, all we know about the intention of the legislature comes from the closing remarks of the Administrator, as recorded in the Journals of the Legislative Assembly:

"In relieving you from your legislative duties, it is with pleasure that I express my appreciation of the earnestness with which you have applied yourselves to the important questions submitted for your consideration.

"I note with gratification the humanitarian aim of measures to provide for the maintenance of the children of unmarried parents, and for the support of needy parents by their children."

The new act imposed a duty on children to provide for the support of their parents, and allowed a parent in financial need because of "age, disease or infirmity" to apply for an order requiring the child to pay parental support.

The Parents' Maintenance Act continued until 1972 when it was repealed and its core provisions merged into the new Family Relations Act, now s. 90 of the current act, as follows:

Obligation to support parent

90 (1) In this section:

"child" means an adult child of a parent;

"parent" means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.

(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.

Treatment by the Courts

Despite the fact that legislation on parental support has been around for about 90 years, very few people have actually advanced claims for child support, in fact there are only nine or ten reported decisions on the subject! Those nine or ten cases are enough, however, to get a sense of how the court has handled parental support claims, and here's a summary of the basic principles:

1. The adult child's need to support him- or herself, a spouse and any children rank ahead of the adult child's obligation to support a parent. (Hua v. Lam, 1985 BC Provincial Court)
2. Any estrangement between the adult child and his or her parent, and the reasons for that estrangement, are factors to be taken into account in ranking the needs of the adult child. (Newson v. Newson, 1997 BC Court of Appeal)
3. Support may be payable when the conduct of the adult child has caused the dependence of the parent. (Peach v. Emlyn, 1999 BC Supreme Court)
4. When the parent seeking support has a spouse, the parent must first look to his or her spouse for support before claiming it from any adult children. (Puskeppelies v. Puskeppelies, 1997 BC Supreme Court)
5. A parent liable to pay spousal support cannot apply for parental support for the spouse in order to duck the spousal support obligation. (Smeland v. Smeland, 1997 BC Supreme Court)

The Future of Parental Support

In the white paper (PDF) on family law reform, published last summer by the Attorney General, the government proposed not to carry provisions for parental support forward into any new law which might replace the Family Relations Act. This would effectively terminate further applications for parental support if the Family Relations Act is repealed, and seems to be a sensible decision given the well-reasoned recommendations of the British Columbia Law Institute in its 2007 report on the subject.

You can find additional information about parental support on my website in the first chapter of the Other Family Law Issues section.

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