Varying Custody or Access Orders in Family Law

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Custody and access to children are complex issues requiring consideration of which circumstances would best benefit the interests of the child. Often, one or both parents may desire a change in custody or access. This can be accommodated so long as they can prove that a material change in circumstances has occurred since the last order was made.

A change can be said to be “material” if the situation presently in force would have resulted in a different order originally being made. Requests for variation are resolved entirely based on what will benefit the child, rather than what either of the parents want (Gordon v. Goertz, 1996 CanLII 191 (SCC)).

Variation is permitted under section 17 of the Divorce Act, which further stipulates that a parent’s newly developed terminal illness or critical condition qualifies as a change of circumstance. A child’s increased age and expressed wishes to spend less time with a parent can also constitute a material change ( M. (S.M.) v. H. (J.P.), 2016 BCCA 284). Intensified and more frequent conflict, if egregious enough, can also serve as a material change (Friedlander v. Claman, 2016 BCCA 434).

Section 47 of the Family Law Act also gives authority for a court to change an order of custody or access. Section 216 of the Family Law Act allows the court to address interim orders (K. (B.) v. B. (J.), 2015 BCSC 1481). Again, the parent desiring the order’s variation must prove a material change in circumstances. The change cannot be one that was contemplated and addressed in the prior order (Gordon v. Goertz, 1996 CanLII 191 (SCC)), such as a foreseen adjustment to a child’s extra-curricular soccer schedule. Material change can be shown through, for example, a parent becoming mentally ill, a child desiring to have less or more time with a parent, or a parent successfully completing counseling and improving their ability to be a guardian.

Although less frequently invoked, the court also has jurisdiction to change an interim order even if there has neither been a change in circumstances or new evidence. The court may only do so if a change would be in the best interests of the child (R. (R.) v. L. (S.), 2016 BCSC 1230. If you have concerns about your family matters, please contact Heath Law LLP to book a consultation.

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Required Mediation in Family Law Disputes

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Through the Notice to Mediate (Family) Regulation, BC Reg 296/2007, a party to a family law proceeding may require the other spouse to participate in mediation with them. Mediation, if successful, can have many benefits including a shorter timeline, decreased cost, and lower conflict. It’s also much less formal than court, and private.

A notice to mediate can be served on the other party at any point that is 90 days’ time after the first response to the family claim is filed, and 90 days’ time before the date of the trial. The parties must agree on which mediator to select, and if they cannot, any party may apply to a roster organization that maintains a list of experienced mediators who would be sufficient. The roster organization will provide a list of options, and the Regulation then requires parties to eliminate certain mediators to which they object. The roster organization will make the final call on who the mediator will be, taking into account the parties’ indicated preferences, the mediator’s qualifications and fee, and scheduling availability.

The mediator is required to hold separate pre-mediation appointments with each party, where they’ll screen for potential power imbalance or abuse. If this appointment leads the mediator to believe that the process would be inappropriate or unproductive, they can conclude the mediation at that point and the parties will need to go through with litigation. Parties are not obligated to settle all or any of their issues at mediation but must attend and participate in good faith. Mediation requires parties to be reasonable, relatively calm, and open to negotiation. Considering how emotionally charged separation is for many individuals, mediation certainly isn’t the answer for everyone, but it may be worth an attempt.

 

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When can Spousal Support be Varied?

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Both the Divorce Act and the Family Law Act give authority to change the amount of spousal support that must be paid, and although worded differently, both acts require a change in circumstances before the variation is warranted. It’s important to bring the variation application under the Act which the support order was originally made under; the Family Law Act cannot be invoked to change a support order made under the Divorce Act (Malbon v. Malbon, 2017 BCCA 427), and vice versa.

The factors for the court to consider when asked to change spousal support are set out in section 17 (4.1) of the Divorce Act and Section 167 of the Family Law Act. In case law, a substantial change of circumstances has been constituted by multiple scenarios including:

• A change in income;
• A change in expenses;
• Retirement;
• Re-partnering; and
• A change of residence for the child.

If parties presume the payor’s income will somewhat fluctuate, but instead it increases significantly, the situation will likely meet the requirement of a substantial change in circumstances (Jennens v. Jennens, 2020 BCCA 59). Purposeful, voluntary changes made to one’s life, such as taking a larger mortgage for a shorter amortization, will not lead to a change of support (Poon v. Poon, 2005 BCCA 60).

A foundational principle of the spousal support obligation is that payor’s must compensate their spouses when that spouse’s contributions to the family allowed the payor to obtain the high income they later benefit from (Judd v. Judd, 2010 BCSC 153).

Voluntary retirement is typically more carefully analyzed by the courts than forced retirement. When considering if retirement justifies changing support obligations, the courts will look at age, background, employment opportunities, and the objectives of the support order (Brouwer v. Brouwer, 2019 BCSC 274). In Cramer v. Cramer, 2000 BCCA 272, the payor was forced to retire due to a health condition, the estate had been split equally originally, and the payee spouse had failed to follow through with educational plans that would have led to financial self-sufficiency. The payor’s retirement constituted a change in circumstances and the spousal support was terminated entirely.

Remarriage or re-partnering alone is not sufficient to trigger a material change in circumstances (Morigeau v. Moorey, 2013 BCSC 1923). But when combined with other factors such as an increase in the payee’s workplace earnings, the requirement can be met (Clarke v. Clarke, 2014 BCSC 824). A change in the children’s residence, meaning an increase in expenses for the parent who is primarily caring for them, can constitute a change in circumstances sufficient to vary spousal support (Aspe v. Aspe, 2010 BCCA 508). . If you’d like assistance with resolving any family matters, please contact Heath Law LLP to book a consultation.

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Steps to Preserve Property in Family Law Disputes

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When relationships dissolve, parties often become concerned that their property will be disposed of or encumbered against their wishes. Property division will be addressed and ultimately resolved as separations move forward, but until agreements are finalized, it may be beneficial for spouses to take certain interim measures. The three types of entries often registered against the title of a property with the Land Title Office are:

• A certificate of pending litigation;
• A Land (Spouse Protection) Act entry; and
• A caveat.

While a certificate of pending litigation (“CPL”) does not create rights to the property which the party did not have before, it does provide notice to would-be creditors or buyers that an interest in the property is being claimed. This dissuades the vast majority of creditors or buyers, with the affect that the property is protected from disposition or encumbrance. The CPL is registered against the title of the property and can be filed against property owned by either or both spouses. A CPL may only be registered once the family law proceedings have begun.

If the property is held in the sole name of one spouse, the other spouse may make a Land (Spouse Protection) Act entry against it. Entries may not be made if the property is held in joint tenancy. The entry will prevent the property from being disposed of without consent. Entries can be made before court action has been commenced but must be made within one year of the spouses residing together in the home. The Land (Spouse Protection) Act has specific forms for the entry application and affidavit. Spouses must have been married or have been in a marriage-like relationship of at least two years.

Finally, if it’s not possible to apply for a CPL or Land (Spouse Protection) Act entry, a caveat may be used. A caveat is a temporary measure registered against the title of property owned by the other spouse. Caveats must be applied for through the correct form offered by the Land Title and Survey Authority, and lapse two months after their registration.
Not anyone can apply for the entries listed above; only people who are spouses or parties to the family law case may apply. If you have concerns about your property or family matters, please contact Heath Law LLP to book a consultation.

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Interplay Between Islamic Marriage Contracts and Canadian Family Law

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Religious-based contracts, such as a Maher, can create increased complexity for the family justice system. A Maher is a contract which some Muslim couples will enter into upon marriage. The Maher can have the effect of requiring the husband pay the wife a specified amount of money if divorce occurs. The value can often be extravagant, such as hundreds of gold coins.

In Kariminia v. Nasser, 2018 BCSC 695, the court ordered that an Islamic marriage contract should be upheld such that the husband was required to pay the wife the value of 114 Bahar Azadi gold coins, equivalent to $49,020 CAD, upon the breakdown of their marriage. The court held that, as per Bruker v. Marcovitz, [2007] S.C.J. No. 54, a dispute can be addressed in the judicial atmosphere even if it has a religious aspect.

Further, people can freely choose to transfer moral obligations related to their religious orders into legal obligations. In upholding the Maher, the court further noted that Canadian law acknowledges cultural diversity (Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (B.C. S.C.)). Ultimately, the Maher in Kariminia was an amount which the husband could realistically pay, the document was signed by both parties, and could be upheld as a valid marriage contract.

On multiple other occasions, the courts have also interpreted contracts for Maher by considering if they’re enforceable “marriage agreements” under family law legislation. In M. (N.M.) v. M. (N.S.), 2004 BCSC 346, the court held that the husband was aware of and understood the amount stipulated in the Maher. He recognized that the Maher was a legally binding document, and wished to marry in compliance with it and the Ismaili faith. The wife in M. (N.M.) was entitled to $51,250. In Amlani v. Hirani, 2000 BCSC 1653, a Maher was again upheld as a valid marriage contract under the Family Relations Act. As a note, the current Family Law Act would apply to marriage contracts entered into after March 2013.

Both the current Family Law Act and the prior Family Relations Act give the courts power to set aside agreements regarding property division on the basis of unfairness. And in Delvarani v. Delvarani, 2012 BCSC 162, the court did just that. The Maher was for the amount of 3000 Bahar Azadi gold coins, which equated to $750,000 CAD. The court held that the husband likely didn’t agree to this payout, especially on top of the financial obligations he’d already have to abide by under BC law. There was no connection between this exorbitant amount of money and the short duration of the marriage, the needs of the wife, nor the husband’s ability to pay.

 

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What is Undue Hardship Under the Federal Child Support Guidelines?

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In certain circumstances, a party required to pay child support may need to claim undue hardship under section 10 of the Federal Child Support Guidelines (the “Guidelines”).This means that the party would be caused to suffer unduly if made to pay the full amount of support originally required. If the party shows the court why they’re unable to pay the amount of support determined under the Guidelines, the court may reduce the value they’re obligated to pay.

Circumstances that may cause a party to suffer undue hardship include:
• The spouse has responsibility for an unusually high level of debt reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
• The spouse has unusually high expenses in relation to exercising parenting time with a child; or
• The spouse has a legal duty to support any person who is unable to obtain the necessities of life due to an illness or disability.

The party claiming undue hardship must also prove that they have a lower standard of living than their ex-spouse. It’s typically very difficult to prove undue hardship because it’s viewed as unfair for one spouse to pay less than the Guideline requirement of support.

In Kelly v. Kelly, 2011 BCCA 173, the judge made it clear that future courts must very carefully exercise their discretion to order a different amount of support (para. 35). The objectives of the Guidelines should not be circumvented; predictability and consistency in support obligations are key components of our family justice system.

If you have any questions, please call Heath Law LLP to book a consultation.

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Orders to Restrain a Spouse from Disposing of Family Property

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If a party to a separation has concerns that their ex-spouse might dispose of family property, or deal with it in a way which adversely affects their interests, a section 91 order may help. The Family Law Act requires that, on application by a spouse, the Supreme Court make an order restraining the other spouse from disposing of any property at issue. These orders are often made mutually, such that both spouses are restrained from deposing of property, pending a resolution of the matters.

This type of order is a form of interim relief, and can only be applied for by a party who has standing under the FLA. To have standing, the party must be married, divorced, separated, or have lived with their ex in a marriage-like relationship of over two years.

Situations in which it may be beneficial to apply for a section 91 order include:
• A spouse refuses to communicate regarding assets;
• A spouse is likely to declare bankruptcy;
• A spouse making attempts to transfer or sell assets; or
• A spouse using substantial amounts of a line of credit.

Finally, applications for section 91 orders can be made prior to having to attend a Judicial Case Conference, which is very beneficial considering the lengthy wait times to be able to attend a JCC.
For more information regarding family law and property matters, please call Heath Law LLP to book a consultation.

 

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Conspiracy By Family Members

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In Leitch v. Novac (2020 ONCA 257) the Ontario Court of Appeal held that “invisible litigants” cannot impede family law proceedings with impunity. Writing for the Court, Houringan J. described these invisible litigants as the parties’ extended relatives who insert themselves into family law proceedings far beyond the permissible grounds of providing emotional support. Rather, invisible litigants exacerbate litigation by encouraging the parties to advance needlessly adversarial positions and by helping to shield a party’s income and assets from the courts.

The Parties
The parties in this case were married for 17 years. They have teenage twin daughters. The Applicant-appellant (“Leitch”) is a law professor and mother of the children. The respondents are the children’s father (“Novac”), his casino management company (“Sonco”), members of the Novac family, two family trusts, and directors of Sonco.

Background
This case arose when Leitch filed for divorce and corollary relief from Novac. She subsequently amended her pleadings to include a claim of conspiracy against the above-noted respondents. On application by the non-family respondents, Justice Cory Gilmore of Ontario’s Superior Court held that Leitch’s conspiracy claim was appropriate for partial summary judgement.

Summary Judgement
In the summary judgment proceeding, Leitch argued that the respondents conspired to withhold business income from Novac until his divorce proceedings were completed. This allegation principally arose with regards to a buy-out of Sonco’s five-year management agreement with an Alberta Casino. Under that agreement, Novac was to receive 40% of the contract price as management fees. Consequently, Novac was entitled to 40% of Sonco’s $5.75 million buy-out as income (i.e. $2.3 million). Instead, the respondents diverted this income away from Novac by arranging a loan between Novac and his father. Memos and emails between Sonco’s Chief Financial Officer, Novac, and Sonco’s accountant suggested that this loan was structured with the purpose of shielding Novac’s share of the buy-out proceeds from Leitch’s corollary support claims.

In her decision, Justice Gilmore, as the motion judge, dismissed Leitch’s conspiracy claim on two grounds. First, she found that Leitch’s evidence failed to prove that Novac had the requisite knowledge to have committed the tort. Furthermore, the summary judgment appears to have been decided, in part, because no funds were actually transferred between the defendants.
Second, Judge Gilmore dismissed the claim on policy grounds. She held that the circumstances were analogous to Frame v. Smith, 1987 CanLII 74 (SCC), wherein the Supreme Court of Canada restricted conspiracy claims with regards to custody and child support. If conspiracy claims were not so restricted, Judge Gilmore reasoned that they would “become the new norm” in any family law case where a “payor spouse, in conjunction with a new spouse/relative/business partner, did not fully disclose income, unreasonably deducted expenses, or received income in the form of cash or goods” (para. 41). In effect, she surmised that conspiracy claims would become a form of punitive damages” (ibid.). Instead, she held that the existing legislation and its associated guidelines constitute a complete code from which Leitch could have sought an imputation of income against the father.

In her summary judgment, Justice Gilmore dismissed Leitch’s conspiracy claim and awarded a total of $1.2 million in costs against her for the proceedings.

The Appeal
The Court of Appeal found that Justice Gilmore made palpable and overriding errors of fact and law. Taken in turn, she misunderstood critical email evidence relating to the alleged conspiracy that was sent between Sonco’s Chief Financial Officer, accountant, and Novac. Next, the Court of Appeal also suggested that Justice Gilmore may have erred in law by accepting the argument that the tort of conspiracy requires an actual transaction, when, in fact, a temporary withholding of funds to impede another party’s entitlement can constitute an “act in furtherance to a conspiracy” (para 51).

On the public policy basis for dismissing Leitch’s claim, the Court of Appeal rejected Justice Gilmore’s reasoning because limiting the tort of conspiracy from family law proceedings would enable invisible litigants to interlope in court proceedings with impunity. While Justice Gilmore was correct in holding that an imputation of income claim would enable a claimant to get access to otherwise withheld funds, this remedy does not address the subsequent enforcement problem that arises when a payor has made themselves creditor-proof by conspiring with invisible litigants (para. 47).

Finally, the Court of Appeal made two further procedural comments. First, it held that this case should not have been bifurcated because the factual basis for Leitch’s conspiracy and support claims were indistinguishable. Contrary to the principle established in Hryniak v. Mauldin, 2014 SCC 7, this created the “substantial risk of inconsistent outcomes” between the summary judgement and the subsequent trial. Second, the Court of Appeal found the motion judge’s costs award “troubling.” Citing Yaiguaje v. Chevron Corporation, 2017 ONCA 827, the Court of Appeal reaffirmed the courts’ obligation to ensure that protection orders, such as security for costs, are not misused as litigation tactics. In this case, the motion judge should have considered the order holistically, assessing whether the overriding interests of justice are served by the order sought. In other words, the motion judge’s costs awards were excessive because they would have impeded Leitch’s ability to proceed with the subsequent trial.

Due to Justice Gilmore’s errors of fact and law, the Ontario Court of Appeal remitted this case back to the Superior Court for a re-determination at trial. The $1.3 million dollars in costs were set aside, and Leitch was awarded costs on the appeal.

For our readers, the principle provided by Leitch v. Novac is that family members acting as invisible litigants are not immune from liability.

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Do Spousal Support Obligations Survive Death?

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What happens to spousal support when the person making the payments (the “Payor”) passes away?  Does the spousal support die along with the Payor or does the obligation survive, binding the estate of the Payor?

When married or common-law couples end their relationship, sometimes spousal support arises.  Spousal support is payment from one spouse to the other in recognition that one of the parties to the relationship may have sacrificed their own financial independence to help the overall landscape of the relationship whether that was providing care to the children of the marriage or giving up opportunities they would have otherwise been able to pursue had they not been supporting their partner.  Spousal support is usually paid pursuant to a separation agreement or a Court order.

Pursuant to s. 170(1)(g) of the Family Law Act of British Columbia (the “Act”), an order respecting spousal support can provide for payment after the death of the Payor.  S. 171(1) of the Act provides the elements that have to be present before a Court will order spousal support after the death of the Payor:

  • that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;
  • that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries; and
  • that no other practical means exist to meet the need referred to in paragraph (a).

If there was an agreement or order in place that provides for spousal support after death, then those provisions will have full force and effect and will bind the Payor’s estate until the period of payment provided for in the agreement or order expires.  To end the spousal support payments before the agreement or order expires, the Personal Representative of the Payor’s estate can apply under s.171(2) of the Act to set aside the agreement or order.

If the agreement or order for spousal support is silent as to whether spousal support survives death, the person receiving support can apply under s.171(3) of the Act to get an order requiring the Payor’s estate to continue to pay spousal support.

What about spousal support payments that are in arrears at the time of the Payor’s death?  Any spousal support payments in arrears at the time of the Payor’s death, will constitute a debt of the Estate: L.S.M.K. v. J.W.K., 2019 BCSC 2025.

Please contact Heath Law LLP at 250-753-2202 if you have any questions regarding spousal support or have any other Family Law related concerns.

 

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Separation/Divorce: Who gets the family pet?

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A separation can be difficult for all members of the family; the family pet is no exception. Many people may be surprised when they go to court seeking to find a fair way to share the family dog, cat, or other pet, that it is treated like property, not family. The courts have set out several factors that will determine how pets are treated (Oh v City of Coquitlam, 2018 BCSC 986):

  1. pets will not be treated in a manner such as children;
  2. courts are unlikely to consider interim applications for pet ownership;
  3. Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is appropriate; and
  4. that pets are a variant of personal property.

While pets are personal property, they are treated differently than a car or a piece of furniture. There is a requirement that animals, especially cats and dogs, be treated humanely. A court will not award ownership of a pet to a person if it would result in abuse or neglect. Apart from that, the courts will only consider who has legal ownership, not who has the most affection for the pet or treats it better. Courts will not create visitation or joint custody arrangements for pets.

Legal ownership will usually be determined by who owns the pet or who brought it into the relationship. This usually is done by looking at who is the registered owner on the pet’s certificate or who paid for the pet. A person can also show legal ownership if they prove that the pet was gifted to them.

This cut and dry approach might make people think that all judges are heartless, but there are dog lovers on the bench too. In 2018, Justice Lois Hoegg of the Newfoundland and Labrador Court of Appeal dissented when the majority of the court relied on the above approach for determining who got the family dog (Baker v Hamina, 2018 NLCA 15). She thought that when two people contest the ownership of a pet, the court should consider additional factors, including:

  1. who bore the burden of the care and comfort of the animal;
  2. who paid for the expenses of the animal’s upkeep; and
  3. what happened to the animal after the relationship between the contestants changed.

The best way to ensure that your pet is treated like family and not property is to resolve that issue before it goes to court. If you would like to book an appointment with any of our family law lawyers, please contact Heath Law LLP at 250-753-2202.

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