Nasty Doesn’t Work in Family Court

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

Intimate partners are expert in knowing how to push each other’s pain points, and when a separation turns into a legal action, it can be difficult to resist the urge to provide evidence of every embarrassing fact or salacious detail about the other party.  The adversarial system pits the parties against each other, and when parenting is at issue, it can be difficult for litigants to discern what is relevant and what is plain-old mud-slinging.  However, a party must always consider whether the facts they try to enter into evidence are relevant and probative to the issues before the court, or they risk their mud-slinging resulting in their own character looking sullied.

Since Reasons for Judgment were published in the case of J.S. v. M.M., 2016 ONSC 2179, the link to the Reasons has been copied and emailed between family law lawyers around the country.  The facts of the case are not unusual, but it’s the pointed and exasperated writing style of Mr. Justice Pazaratz that makes the case so compelling.  Pazaratz J. held nothing back in expressing his frustration at being asked to consider (and view, in full colour) sexually explicit photographs of the mother in a custody case.

In that case, Mr. S applied for temporary custody of the two children of the marriage and primary residence of his son. He argued that the mother was not adequately caring for boy, who had special needs.  He alleged that she was too preoccupied with her new boyfriend.  man-person-smartphone-technologyIn his affidavit submitted in support of his application, Mr. S included screenshots taken from the mother’s cell phone (which she thought was discarded) of “sexts” and pictures exchanged between the mother and her boyfriend.  The judge rightly found that these bore no relevance to the matters before the court.  In the words of Mr. Justice Pazaratz, “The mother has a sex life. Big deal.”

Mr.  S’s strategy was particularly flawed given that he had tried to allege that the sexually explicit material was relevant because the parties’ son had found the cell phone and viewed the material, causing trauma to the boy. The problem with that line of reasoning was that Mr. S himself had left the phone in his residence unattended, giving his son access to it.

Pazaratz J. held no punches when he says in his Reasons, “nasty doesn’t work”, and “nasty won’t be tolerated.”

Ultimately, Mr. S’s application for primary residency of his son was dismissed, although he was able to obtain some increased access to both children.  The Court struck the sexually explicit photographs and texts from the record and prohibited Mr. S from showing the materials to any other person.   The Court invited submissions on costs, and it is very likely that once the submissions are made, there will be cost consequences for Mr. S’s litigation conduct.

More importantly than court costs, however, is possibility of co-parenting going forward.  The level of conflict between separated parents has an immense impact on the development of the children. Mr. S has likely irreparably damaged the prospects of the children being able to reap the benefits of parents who are amicable with each other.  In the words of the presiding judge: “How will the parents ever again be able to get along?”

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

BC Supreme Court Family Rules Amendments

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On February 18, 2016, the British Columbia Supreme Court announced a January 28, 2016
Order in Counsel making amendments to the Supreme Court Family Rules effective July 1, 2016.  Notable among the amendments is to Form 20 and Form 21, which are the List of Documents and Appointment to Examine for Discovery, respectively.  typing-vintage-technology-keyboard

The List of Documents is a form that tells the other party which relevant documents are in the possession and control of the listing party.  The Appointment to Examine for Discovery is the form that sets the time and place for the other party to be examined under oath in advance of the trial.  Lists of Documents and Examinations for Discovery facilitate and require broad and comprehensive disclosure, and typical family litigation will result in the parties exchanging very sensitive information and documents.  The recent amendments call for including in the forms the implied undertaking of confidentiality over documents exchanged in family litigation:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judicial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.”

This implied undertaking is not at all a new concept.  You may not use documents or information obtained in litigation for any other purpose except the litigation, unless you fall within a few narrow exceptions.  Family law litigants have been bound by this rule for years.  However lay litigants are increasingly common, and most non-lawyers would not have reason to be aware of the implied undertaking until now.   The amendments make it clear on the face of the documents: disclosure obtained in family cases is for use in the litigation only.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Ex Tapes: Recording Marital Discord

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the most difficult challenges survivors of abuse in custody and guardianship cases face is proving to the judge that they have been abused.  Abuse survivors are often faced with the risk of being found to be exaggerating or fabricating their allegations in order to gain an upper hand in the litigation.  Sadly, survivors are put in a position of having to decide whether their evidence is “good enough” such that they will be believed.  Some survivors choose not to lead evidence regarding abuse because they are concerned that it will have a negative impact on how the court will view their credibility.

In the recent BC Supreme Court decision of N.D.T. v. T.F.T., 2016 BCSC 134, the Claimant was successful in proving her allegations of abuse.  She was able to show that the Respondent had been verbally abusive, that the abuse had taken place in the presence of the parties’ children, and that the Respondent’s conduct reflected his capacity to parent the children.  The BC Family Law Act explicitly requires BC Courts to consider the impact of family violence on children, whether or not it has been directed at the children.  The Claimant, referred to in Mr. Justice Saunders’ judgment as “Ms. T”, consequently won her claims for custody, guardianship and parenting time.  Her method of proof: video recordings.

Ms. T had video recorded the parties’ arguments for a period of approximately two years leading up to the date of separation.  Videos of 19 separate incidents were admitted into evidence.  That takes riphone_notes.jpgeal forethought!

What makes Ms. T’s success even more remarkable is that she won despite an expert report that made recommendations that Ms. T should get counselling to shift her focus away from drawing the children into the conflict and “placing blame” on her husband.

In the past, BC courts have been disapproving of surreptitious recordings in family cases.  Recording a former spouse without permission has been viewed as contributing to mistrust and conflict between parties; and yet time and time again videos and audio recordings are admitted into evidence.  In this case, one has to wonder if Ms. T would have been so resolutely successful on the parenting issues had she not been so proactive in collecting evidence during the marriage.

It feels unsettling to think that unhappy spouses will start recording each other’s worst moments for years on end with the aim to build a case for a family law trial.  However, with recording devices literally at everyone’s finger tips, we can expect more of this evidence to come.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Back Up Before You Shack Up! Seven Essential Steps to Take Before Moving in Together

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1. Understand what you are getting into. Did you know that in British Columbia you become a spouse pursuant to the Family Law Act if you have lived in a “marriage-like relationship” for two or more years? Did you know that you can become responsible for child support of your partner’s children if you are a) a spouse of the parent , and b) have contributed to the support of the child for as little as a year? Living together is serious business, and so it is important to go into it with eyes wide open.

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2. See a family lawyer. Have you read the Family Law Act? Well, if you are thinking of moving in with your love, you ought to familiarize yourself with the basics of the Act because it will govern what happens to family property and family debt if your relationship ends. Even with just one appointment, a BC Family Law Lawyer can help you understand the basic rights and responsibilities imposed by the Family Law Act when you cohabit with your romantic partner.

3. Take Stock. What assets and liabilities do you have? Once you become a spouse, you can be sued for property division and spousal support if your relationship ends. Now is the time to tally up the assets you have and to consider whether your income level exposes you to a potential spousal support claim. It’s a good idea to print off a copy of all of your bank accounts, investments and debts so that you have a record of the balances as at the time you started living together. Keep those records tucked away just in case.

4. Think carefully before giving away your furniture. Assets brought into the relationship are yours to keep, but you lose that benefit if you dispose of them during the relationship. Furniture purchased after you move in together will likely be family property, subject to division upon relationship breakdown.

5. Talk to your partner about your expectations. The time to sort out the division of household duties is before you move in together. This would be a good time to think about how each of you will contribute to household expenses. Consider couples counselling if either of you are finding it difficult to have these conversations. The time to establish effective communication is now!

6. Appraise real property. If you have real property (ie. a house, condominium, or other land) you should consider getting an appraisal. In general, property that you bring into a spousal relationship is excluded from division but the increase to excluded assets is divided between you. In urban areas in British Columbia, real property often can increase in value by tens of thousands of dollars within a short time. It is important that you know what the value is at the outset so that if your relationship does break down, you know your exposure to a claim by your spouse.

7. Consider a cohabitation agreement. A properly executed cohabitation agreement can help you define the expectations you each have for living together, and reduce the chance of litigation if you do break up. You can use a cohabitation to alter or completely opt out of the rules set out in the Family Law Act. One of the requirements of a cohabitation agreement is that both spouses understand the nature and consequences of the agreement, so make sure that you see a lawyer before signing anything.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Teachers Strike Supplement Creates Potential Family Law Conflict

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*You can find this and other posts by Virginia K. Richards and her colleagues on the Henderson Heinrichs LLP website.

The strike is on and many parents have already applied for their $40-per-day Temporary Education Support for Parents (“TESP”) offered by the British Columbia government, for public school students aged 12 and under who are not able to attend school due to the teacher’s strike.  For separated or divorced parents in British Columbia, the question arises: who gets the money?

The BC government website set up to accept registration for the TESP (www.etax.gov.bc.ca/btp/tesp), provides that you must be the “parent/ primary caregiver of each student you register”.  The website elaborates:

The parent/ primary caregiver is the person primarily responsible for the care and upbringing of the student.  While usually the parent, a primary caregiver could also be a: step-parent, legal guardian, adoptive parent (including a parent that has not yet completed the adoption process but the student lives with them), foster parent, family member who normally cares for the student (such as a grandparent), host parent for international students, caregiver under a temporary custody arrangement.

Under “Frequently Asked Questions”, the primary caregiver is described as “the person responsible for the day to day care and upbringing of the student for the majority of the time.”  For separated or divorced parents, the parents themselves must decide which parent will register for the payment, as the payments will be issued to one parent only. 

Many separated or divorced parents in British Columbia will be able to agree upon who will apply and how the TESP will be used, particularly where the cost of strike child care matches the TESP rate of $40 per day.  But there will always be those cases where the parties are unable to come to consensus.  Separated or divorced parents may find themselves disputing how the TESP ought to be used in the event the parties do not require additional paid childcare during the strike, or on the flip side, if the TESP is insufficient to cover the family’s childcare needs.  There also appears to be no recourse built into the TESP program where a parent applies for the supplement despite not having care and control of the children for the majority of the time.  With the TESP set at approximately $1,200 per student per month, BC Family Lawyers can expect to see the allocation of the money crop up as an issue in child and spousal support applications in the BC Courts long after the strike is over.   However, parents would be wise to work out an agreement on the TESP between themselves, or most of that money will end up with the lawyers!

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

BC Government pulls back some funding for Family Law Pilot Project

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Lawyers across Vancouver were excited to learn about the Family Law Pilot Project in the Vancouver and New Westminster Supreme Court locations.  While the pilot is still set to continue, unfortunately, the British Columbia branch of the Canadian Bar Association has emailed its members to say that the government has withdrawn funding that had been earmarked to pay for a research and litigation support lawyer who would work for the Project.

New Family Law Pilot Project at Supreme Court

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The Vancouver and New Westminster locations of the British Columbia Supreme Court announced on July 14, 2014 that a new Family Law Pilot Project will start on September 2, 2014.  The project will involve appointing a roster of judges that will be assigned to preside exclusively over family law applications and trials for a period of approximately six months each.  The project is slated to continue for two years, and will be supported by dedicated legal counsel who will provide research support to our BC Supreme Court Justices.  This is great news for family lawyers as the area of family law can be quite different from civil litigation, and many justices have no experience practicing family law when they take up their spot on the bench.  The pilot project is perfectly timed to address the uncertainty surrounding the new Family Law Act and some of the trickier questions that have emerged from its interpretation.