Family Breakdown

Family Breakdown The Law Society of BC, Report of the Family Law Task Force (2008) “Family is the core relationship that binds human beings together: it informs our understanding of self, and our relationships with others, and has a profound impact on how communities form and function. Family constitutes the private sphere of our lives, yet is interwoven in profound ways with our public lives. Because of this, family has the capacity to affect and influence virtually everything we do. Family, perhaps more than any other relationship, touches the emotional heart of who we are. As such, the dissolution of the family unit can have profound emotional, economic, private and public ramifications. Family, more than any other social relationship, often involves the interests of people who are particularly vulnerable: namely, the elderly and children.” Terminology Supreme Court Family Rules claimant and respondent (2010), plaintiff and defendant (pre-2010) Provincial Court applicant and respondent Jurisdiction of Divorce and Family Matters ss 192-193 FLA BC SUPREME COURT • Divorce, custody, access, child and spousal support, variation of orders, foregin and extraprovincial orders • Division 1 – Jurisdiction of court generally • 192(1) subject to the divorce act the SC has jurisdiction in all matters under this act • 192(2) subject to the divorce act the SC continues have jurisdiction in all matters respecting marriage and divorce • 192(3) inherent parens patriae jurisdiction vested with SC PROVINCIAL COURT • 193(1) all FLA matters • 193(2) but cannot do (2a) parentage (declaration or order of parentage), 2(b) property division, pension division, childrens property • in some instances they could make a parentage declaration – when the parties are there in the prov court for another reason (ie child support) Divorce under the Divorce Act NOTE: Residency requirements under the DA Jurisdiction in divorce proceedings 3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. 8(1) Court may grant divorce on the ground that there has been a breakdown of the marriage 8(2) Breakdown of a marriage is established only if (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (i) committed adultery, or (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. Divorce under Civil Marriage Act Part 2 of the Civil Marriage Act deals with divorce of non-resident. 6 jurisdiction is Supreme Court 7 divorce can be granted in the jurisdiction marriage occurred if (a) breakdown of marriage, living serparte x 1 year (b) neither spouse resides in Canada and (C) each of the spouses has resided in an area x 1 yr that doesn’t recognize the marriage as valid Marriage-like Relationship in FLA Spouses and relationships between spouses - FLA 3(1) A person is a spouse for the purposes of this Act if the person 1. is married to another person, or 2. has lived with another person in a marriage-like relationship, and (b) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person. (2) A spouse includes a former spouse. (3) A relationship between spouses begins on the earlier of the following: (a)the date on which they began to live together in a marriage-like relationship; (b)the date of their marriage Weber v. Leclerc, 2015 BCCA 492 * Marriage-like relationship DEFINED: intention to be in relationship critical Facts: Couple lived together, separated, disagreed whether they had been in “marriage like relationship” per FLA. Ms Leclerc wanted them to NOT be found spouses Trial: summary trial found they WEREin marriage like relationship (IE common law married) Appeal: Agreed with trial, applied correct test RATIO: Marriage like relationship: - does not require economic interdependence (not an essential characteristic of marriage) Takacs, Weber v Leclerc - Assessment is of nature and quality of existing relationship - Intention to be in a relationship similar to marriage is the critical piece, not the intention to be bound by a statutory regime (Takacs) - Also requires evidence of their interactions and behaviours to determine whether they acted married-like - There is no checklist to determine whether or not a relationship is marriage like, it is a fact based assessment - Question of mixed fact and law that requires a broad approach Austin - “though economic dependence or independence exists in many marriages, it would be difficult to characterize such dependency as being an essential characteristic of marriage” Discussion: - Refers to Austin v Goerz and Takacs v Gallo: determining whether it is marriage like relationship requires a holistic approach. the presence or absence of any particular factor cannot be determinative. ‘there is no checklist of characteristics that will invariably be found in all marriages’. - “Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved” Roach v Dutra Separate homes but still marriage-like relationship (attn: FRA) Facts: Mr Dutra didn’t want to pay support, wanted Ms Roach found not a spouse. Had lived together but kids didn’t get along so lived in separate homes afterwards, that they co-owned on title. Trial: found to be marriage-like, even though separate homes they had intention to be together in marriage like relationship Appeal: no evidence of separation, found same as trial judge The Molodowich Test to determine if marriage like relationship **(historical – 1980 ** don’t apply it only as it is not really used today) Shelter, Sexual and personal behaviour, Services, Social, Societal, Support ($), Children Separation Traditional indicators of separation Oswell v Oswell lays out traditional indicators of separation but not a checklist approach (1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms (…). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart (2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium (3) The absence of sexual relations is not conclusive but is a factor to be considered (4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern (5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above McGrail v McGrail, 2016 BCSC 104 * Intention is key to separation, need not be mutual [39] Intention is key to the analysis. It need not be a mutually shared intention [40] In Nearing v. Sauer, 2015 BCSC 58 (CanLII), Madam Justice Fleming stated (para. 54) that the case law also requires that the spouse who wishes to separate take action consistent with that intention. [41] After referring to other authorities Fleming J. stated: I do not interpret the authorities as requiring the spouse who intends to separate to demonstrate absolute certainty that the marriage is at an end. Such a view would be inconsistent with the express language of s. 3(b)(ii) of the Divorce Act. It is enough to communicate an intention to separate, accompanied by actions consistent with that intention, assuming, of course, there is a form of physical separation between the spouses. (para. 59) Separation under the FLA Under the BC FLA, separation is considered to be effective when one of the spouses, with an intention to separate, communicates their intention to separate permanently (FLA 3(4)(b)(i)) and also take an action that demonstrates their intention to separate permanently (FLA 3(4)(b)(ii). The intention to separate does not have to be mutual (McGrail). Separation can be effective despite the spouses still living in the same residence (FLA 3(4)(a)). The most important part is that the intention to separate is there, and that it is communicated and acted on accordingly. Indicators of Separation: There is no specific checklist to indicators of separation, it is a fact specific look at the various traditional indicators of separation including physical separation, withdrawl from the matrimonial obligations and household tasks, absence of sexual relations, and methods of communications, sharing meals, etc between the spouses. None of these are exhaustive or conclusive but are factors to consider (Oswell). 3(4) For the purposes of this Act, (a)spouses may be separated despite continuing to live in the same residence, and (b)the court may consider, as evidence of separation, (i)communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii)an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. WOLFMAN AND CALVERT TEST - Intention does not have to be mutual McGrail - Indicators of separation, but not a checklist approach Oswald Separation in the divorce act DA 8(3)(a) deemed separated for any period they live apart and one of them had intention to separate 8(3) (b) its ok to still live together and still be separated IF (i) either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate (ii) resumed cohab not more than ninety days with reconciliation as its primary purpose. Separation is important in both the DA and the FLA, but means different things • • Separation indicates the termination of the relationship under the FLA Under the DA, the key determinant is breakdown of the marriage: either by living separate and apart for one year, or by faults (adultery or cruelty). Separation then is the starting point for the period of time that you need to be living separate before you can get your divorce order. In both situations: intention is most important, as demonstrated through communication and action • • • • Does not need to be a shared intention between the parties Demonstrating intention to separate can be very abstract! It’s not checklists, its nature of relationship and intention to terminate it Recommend to client to have some sort of proof or evidence of communication to facilitate the establishment of the date of separation Time Limits Both the DA and the FLA recognize that couples may make attempts at reconciliation (DA s 83)(1) the clock does not restart if you attempt reconciliation Dates of separation are important because - Influence when a divorce order can be granted - They demonstrate the time limits have been met - Calculations for property division FLA 198 (1) Subject to this Act, a proceeding under this Act may be started at any time. FLA 198(2) A spouse may start a proceeding to divide property or family debt, to divide a pension, or for spousal support, no later than 2 years after, (a)in the case of spouses who were married, the date (i) of divorce judgment or (ii) marriage nullified (b)in the case of spouses who were living in a marriage-like relationship, the date the spouses separated. FLA 198 (5) The running of the time limits set out in subsection (2) is suspended while engaged in dispute resolution Capacity to Separate - the intention to separate requires the lowest level of understanding Wolfman-Stotland the capacity to form the intention to separate is equivalent to the capacity to enter into a marriage. The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs. Family Dispute Resolution "family dispute resolution" means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes (a) assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of Part 2, (b) the services of a parenting coordinator under Division 3 [Parenting Coordinators] of Part 2, (c) mediation, arbitration, collaborative family law and other processes, and (d) prescribed processes; its an open category, but doesn’t mean it encompasses everything – must be mentioned in a regulation or under this Act The FLA places symbolic weight on out of court agreement • The theory is that it offers simpler, speedier and less costly ways to resolve post separation disputes, and that these mechanisms will foster the BIC and the relationships of the parents • The assumption, especially when children are involved, is that relationships do not end, they transform. Our role as dispute resolution professionals is to assist in a positive transformation for the family. • Can be empowering to the parties, to allow them more options to resolve conflict • Risks: domestic violence, unequal power between partners s 6 Nothing in the FLA stops you from making an agreement with your spouse and sticking to that agreement FLA Part 2: entirely devoted to dispute resolution FLA s 4: Purposes of family dispute resolution - to ensure parties are informed of options available to them, - to encourage parties to resolve through agreements and dispute resolution before making applications to court, - to encourage parents to resolve without using the court, and to make agreements that are in line with the best interests of the children. Three divisions: 1. Out of court agreement is the best option (s 4-9) 2. Family justice counsellors (Appointed by a minister) 3. Parenting Coordinators (Appointed by agreement or court order) § Used in high conflict situations involving children Who offers family dispute resolution? - Defined in S 1 (a) a family justice counsellor; s 10 for details (b) a parenting coordinator; s 14 must meet requirements set out in the regulation (c) a lawyer advising a party in relation to a family law dispute; (d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations; (e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations; (f) a person within a class of prescribed persons Mechanisms under FLA that promote meaningful / efficient ADR - s 5 FLA : Duty to disclose: - ”Full and true information” (s 5(1)) - Duty not to use information for other purposes (s 5(2)) s 6 FLA: possible to make agreements, agreements are binding, no consideration required, etc. 6(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt. Minors <19 have capacity to make their own agreements in their own divorce or separation or their own parenting relationships 11 and 13 Confidentiality requirements - Specifies in BC that in some circumstances confidentiality requirement can disappear: i. If parties consent ii. If parties go to court, the agreement can be used in court Dispute Resolution professional duties: FLA s 8(1) assess whether family violence may be present s 8(2)(a) discuss of the advisability of using various types of family dispute resolution s 8(2)(b) inform the parties of available resources available to assist s 8(3) advise the parties agreements and orders on listed matters related to the children need to be made with the consideration of the best interests of the child The dispute resolution professional must certify that these duties under s 8(2) have been fulfilled per s 197 FLA prior to any legal action. DA s 9 (duty of legal advisor, reconciliation, mediation, certification) DA s 10 (duty of court, ensure reconciliation is not an option) Types of Dispute Resolution and Professionals Family Justice Counsellor 11 (1)(a) must not disclose information obtained in the course of providing assistance 12 (1) must not be compelled to disclose, or to testify in any proceedin, information obtained by providing assistance 13 (1) Parties cannot use information obtained during mediation or negotiation against the other in court UNLESS 13 (2) (a) the other party consents (b) if it’s a report that they both paid for or has expert advice (ie s 211) (c) in any circumstance under which the information is compellable by law, or (d)t o a written agreement between the parties (i) to mediate, or (ii) that resolves one or more issues relating to a family law dispute. Mediation ** Must ensure that they advise clients to seek legal advice Voluntary process Mediator must meet requirements of s 4 Family Law Act Regulation, B C Reg 347/2012; benefit: insurance! - Lawyers can be mediators if they meet the requirments - Lawyers can also participate in the mediation - Encourage to seek legal advice - to review an individuals mediated agreement and make sure client knows all their rights, and that the agreement is fair Mediator is neutral - does not make decisions, he, she or they help(s) to the communication between the parties; - Use different mechanisms to empower the parties to find their own solutions - Key to mediation is for parties to learn to communicate, identify their needs and find solutions that work for them; - Confidentiality requirements must be considered! - At the end of a mediation process, you are not divorced. You still need a divorce order if you want one. Arbitration - Neutral arbitrator, selected by the parties only used in common law provinces (not Quebec) Arbitrators must meet requirements of s 5 of the Regulations and procedural requirements of Arbitration Act; The arbitrator will act as a judge and parties are going to be bound by his, her or their decision; Arbitration Act s 23 Award must be in line with the principles of the FLA to be enforceable by the court AA 2.1(3) Potentially modifiable by a court, IF meets criteria in– i. improper advantage taken of another party’s vulnerability or distress, ii. one party didn’t understand what was going on, iii. one party didn’t understand the nature and consequences of the agreement, and in all other circumstances under the common law that could cause a contract to be voidable Med-Arb - Two-stage process - Mediation and if it does not work arbitration; - Involving a qualified third party, can be the same person doing both if they have the right training Parenting Coordinators FLA ss 14 + A person meeting the requirements set out in the regulations may be a parenting coordinator. - Generally high-conflict situations, appointed by a court and/or by a written agreement between parties 15(4) Length – usually 2 years, can be renewed for another 2 years 15(5) May be extended - Meant to be temporary and used until relationship between parents gets better - Determinations (form and substance) – facilitate the communication and help parties respect what is in their parenting order or agreement 15(2) A parenting coordinator may assist (a) if there is a parenting coordination agreement or order in place, and (b)for the purpose of implementing an agreement or order respecting parenting arrangements, contact with a child or other matters. 16 A party must, for the purposes of facilitating parenting coordination, provide the parenting coordinator with (a)information requested by the parenting coordinator, and (b)authorization to request and receive information, respecting a child or a party, from a person who is not a party. 17 A parenting coordinator may assist the parties (a) by building consensus (b) making determinations respecting matters 18 (2) In making a determination, must consider the best interests of the child only 18 (5) A determination is binding on the parties Unbundling / LEGAL COACHING (She prefers this term) Mediate BC, Mediate BC’s Family Unbundled Legal Services Project – Final Report, July 7, 2017, read p 5 starting at ‘What is unbundling’ to 9 stop at ‘what were the purposes’ FROM MARCH 6 • • • • A situation where a lawyer provides limited scope services, rather full scope Limited scope legal - a lawyer performs discrete tasks and the client handles other matters that, in a full service retainer, would form part of the services the lawyer would provide. Research shows a very large, and widening, gap between Canadians who qualify for legal aid in their provincial plans and those who can afford to pay for full representation by a lawyer in a legal matter. While full representation for litigants is preferable, in light of these realities the unbundling model is an important and promising development. Report from Mediate BC BENEFIT: - Improved access to affordable legal services (and therefore to access to justice) - Price predictability - Improved outcomes Increased voice Enhanced empowerment Improved confidence in the process and outcome Improved access to settlement processes Access to tailored services Assistance in dealing with power imbalances Potential value to lawyers - Done well, it can be straightforward, lucrative and enjoyable. - A solid contribution to access to justice - Access to new untapped markets - New, tailored, client-centred business models - Managed exposure to risk - Improved lifestyle and satisfaction Potential benefits to the Courts, the Judiciary and the justice system - Self-represented litigants who have had access to unbundled services will be better prepared and familiar with court rules and procedures - forms/pleadings and documents will be clearer - hearings will be shorter and more focused - the number of hearings will be reduced - outcomes will be more just - justice resources will be freed up for other matters - public perception of the justice system will be improved Family Violence Can be considered when determining: best interests of child, care and time of children, and dispute resolutions - Dispute resolution not suitable in situations of family violence due to imbalance of power (must be fair, equal) Duties of legal professionals s 8 - to assess whether a situation has family violence, and to ensure that violence won’t affect the agreement FLA definition of family violence is broad: - physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, - sexual abuse of a family member, - attempts to physically or sexually abuse a family member, - psychological or emotional abuse of a family member, including (i)intimidation, harassment, coercion or threats, , (ii)unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii)stalking or following of the family member, and (iv)intentional damage to property, and - in the case of a child, direct or indirect exposure to family violence;