Family Law – Obtaining Interim Spousal Support

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When parties separate, one party may seek spousal support between when the issue of spousal support is first heard and the point at which the court makes its final decision (for example, when the Court makes a divorce order or makes final orders with respect to property division and support). This is known as “interim spousal support.”

The recent case of Piva v. Piva, 2018 BCSC 670 [“Piva”], illustrates the factors a Court will consider when deciding whether to award interim spousal support.

In Piva, the claimant was 50 years old and the respondent was 55 years old. The parties were married for 28 years.

The claimant applied for interim spousal support.

Master R. W. McDiarmid began the analysis using the legal test under section 15.2(4) of the Divorce Act:

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Master McDiarmid further stated that the Court must also consider the following factors:

  1. the applicant’s needs and the respondent’s ability to pay assume greater significance;
  2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
  3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
  4. The courts should not unduly emphasize any one of the statutory considerations above others;
  5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
  6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
  7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out;
  8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

In Piva, the Respondent disclosed $183,688.45 in income for 2017 and the Master imputed income of $40,000.00 to the Claimant. The Master calculated the range of spousal support which could be paid by the Respondent to the Claimant based on the parties’ respective incomes and awarded the Claimant interim spousal support after considering the following fact:

  • the Claimant had exclusive occupancy of the former matrimonial home, and once the appropriate spousal support order was made, the Claimant would be responsible for making all of the payments associated with the house;
  • the Respondent’s Financial Statement set out expenditures of approximately $6,350.00 toward savings and debt payments. As well, $4,460.00 monthly was allocated toward income taxes which would be reduced substantially by a spousal support order [because spousal support is tax deductible to the payor and is taxable income to the recipient]; and
  • the Claimant remained in the family home with no mortgage payments to be made.

The Master awarded interim spousal support payable by the respondent to the claimant in the amount of $5,000.00 per month.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Family Law – Who qualifies as a Spouse?

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In BC, “spouses” are entitled to certain rights upon separation including support and a shared interest in “family property”.  Two people will qualify as spouses in BC if they live in a “marriage-like relationship” for a period of two years.

Whether or not two people qualify as one another’s “spouses” under the Family Law Act requires a legal analysis.  In the recent case of CFM v. GLM, 2018 BCSC 815 [CFM], Justice Baird adopted Dey v. Blackett, 2018 BCSC 244 for the principles used to determine whether a couple is in a marriage-like relationship:

[192]     The determination of whether a relationship was marriage-like requires a “holistic approach”, in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question: Austin v. Goerz, 2007 BCCA 586 at paras. 58 and 62.

[193]     While a “checklist” approach to this question is not appropriate, it can still be helpful during the analysis to consider the presence or absence of commonly-accepted “indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship”:  Weber v. Leclerc, 2015 BCCA 492 at para. 25. A frequently-cited authority has identified these indicators as including “shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple”: M. v. H., [1999] 2 S.C.R. 3 at para. 59, citing Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at para. 16 (Ont. Dist. Ct.).

[194]     While financial dependence was at one time considered an essential aspect of a marriage-like relationship, this is no longer so: Austin at paras. 55-56.

[195]     The intentions of the parties, particularly whether they saw the relationship as being “of a lengthy, indeterminate duration”, will be important to the determination of whether the relationship was marriage-like. However, evidence of their intentions must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship: Weber, at paras. 23, 24. In other words, “subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such”: Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.) leave to appeal to SCC ref’d, [1998] S.C.C.A. No. 238, at para. 53.

[196]     In weighing the various factors, it is also an error to give undue emphasis to the future plans of a couple, in contrast to the current realities of their respective situations: Takacs at para. 58.

Applying these principles, Justice Baird found the Claimant and Respondent did not qualify as spouses because:

  • The parties’ relationship was a tumultuous liaison frequently interrupted by sometimes lengthy hiatuses brought on by illicit infidelities and betrayals that were divisive and hurtful;
  • The parties did not live together for a period of two years;
  • The Respondent had a “leading female” in his life who was not the Claimant in the two years prior to the parties’ final separation.

Noteworthy is that the Claimant sought that certain corporations in which the Respondent had an interest be considered “family property” in which the Claimant could also claim an interest.  As a result of the decision, the Claimant was incapable of advancing her claim against the property of the Respondent.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Family Law – Spousal Support as Compensation for an Economic Advantage or Disadvantage

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In BC, a Court can award spousal support to provide redress to a recipient spouse for an economic disadvantage arising from the marriage or for conferring an economic advantage on a payor spouse.  This is known as “compensatory support.”

In the recent case of Wilson v. Garbella, 2018 BCSC 864 [“Wilson”], the Court adopted the BC Court of Appeal case Chutter v. Chutter and summarized the principles which inform compensatory support, writing:

[50]      The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success…

[51]      In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts…the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse.”

In Wilson, the Court found that the Claimant experienced disruption of her employment by moving to Halifax while the Respondent trained for submarine service and acted as primary caregiver for the parties’ child for the last five years of the relationship.  In the circumstances, the court found that the claimant suffered a loss of income earning potential by subordinating her needs to those of her family, and, by assuming primary responsibility for the parties’ child, assisted the Respondent in furthering his career.

The Court therefore found the Claimant was entitled to compensatory support of $450.00 a month for four years.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Family Law – Protection Concerns / Family Violence and Judicial Case Conference (JCC)

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When attending a Judicial Case Conference (“JCC”), the parties and their lawyers (if any) will attend Supreme Court to try and work out any matters which the parties can agree on or consent to.  The Court will make procedural orders, even if not agreed upon by the parties (for example, a deadline by which Lists of Documents need to be exchanged, or a deadline for disclosure of certain documents).  A JCC is necessary before a party can bring an interim application (though there are exceptions in emergency or urgent cases).

JCCs can be daunting for some parties to family litigation since this may be the first time a party will be in the same room or vicinity as a former spouse.  The matter may be complicated when there are protection orders or where there are concerns with respect to family violence by one of the parties to the proceedings.

The Supreme Court does not have access to Provincial Court files as a matter of course, which may contain a protection order.  Therefore, if you have concerns with respect to safety at a JCC (due to a history of family violence or because of a significant power imbalance), it is imperative that you notify your lawyer of your safety concerns as soon as possible before the JCC or, if you are representing yourself at the JCC, notify the Registry staff of your concerns as soon as possible.

If necessary, the sheriffs will ensure that a sheriff is present during the proceedings.  The Judge or Master will also be made aware of your concerns and can prevent you from having to sit facing the other party at the JCC.  This will help protect you and the presiding Judge or Master against any violence by the other party to the proceedings.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Family Law – Naming a Child

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Although many people may not think that naming a child is a family law matter, there are many legal considerations that may affect your choice for your child’s name.

Your Child’s First Name

There is a fairly recent trend among parents to try to find a unique name for their child. However, although parents may wish to create an original or memorable name, the law restricts how a person can name his or her child. The laws about naming a child are different in every province. In British Columbia, if the Registrar of Vital Statistics believes that the name chosen by a child’s parents will cause mistake or confusion or will cause the child or anyone else embarrassment, he or she must refuse the name.

Your Child’s Last Name

Although parents do not typically choose a last name as they would a first name, parents may not agree as to whether the child should have one parent’s last name or a combination of the two. A child’s last name will depend on who reports the birth. If only one parent fills out the form for reporting a child’s birth, that parent may choose the child’s last name. If more than one parent fills out the form, then both parents must decide on the name. If they do not agree because they have different last names, they must give the child a hyphenated last name containing both of their last names.

Changing Your Child’s name

A parent may wish to change his or her child’s name in many circumstances, including where:

  • he or she did not fill out the forms reporting the child’s birth;
  • he or she and the child’s other parent have separated;
  • he or she changed his or her last name and wants the child’s last name to be the same; or
  • the child would like to change his or her name.

Whether you will be able to change your child’s name will largely depend on what is in the child’s best interest. Generally, in order for you to change your minor child’s name, you will need to obtain the consent of the other parent. For children over a certain age, the child may be required to say why he or she would like to change his or her name.

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Family Law – Unequal Division of Family Property

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The Family Law Act, s. 95(1), gives the Supreme Court the power to order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

The Family Law Act, s. 95(2) lists several factors the Supreme Court may consider when deciding whether or not to order unequal division of family property, family debt, or both:

  • the duration of the relationship between the spouses;
  • the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];
  • a spouse’s contribution to the career or career potential of the other spouse;
  • whether family debt was incurred in the normal course of the relationship between the spouses;
  • if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
  • whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

  • a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

The recent case of MCV v. FV, 2018 BCSC 96 (“MCV”) elaborates on the test the Court will apply when deciding whether or not to make an order under s. 95. In MCV, the Honourable Madam Justice Darbi wrote that

[122]     In Jaszczewska v. Kostanski, 2016 BCCA 286, the Court of Appeal interpreted the legislative intent of section 95 as constraining the exercise of judicial discretion:

41        Clearly, the statutory intent is to constrain the exercise of judicial discretion. The test of “significant unfairness” imposes a more stringent threshold than the mere “unfairness” test of the FRA to allow unequal division by a court. As Mr. Justice Butler observed in Remmem v. Remmem, 2014 BCSC 1552, “significant” is defined as “extensive or important enough to merit attention” and the term refers to something that is “weighty, meaningful or compelling.” He concluded that to justify an unequal distribution “[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)”. Remmem at para. 44. As the judge here noted at para. 162 of her reasons, the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. I agree.

In MCV, a wife sought unequal distribution of family property on the ground that the husband failed to produce a trust indenture and financial statements for the trust, and that the wife was deprived of the opportunity to determine if the husband’s interest in the trust qualified as family property under the Family Law Act.

Madam Justice Darbi wrote that failure to disclose financial assets may be considered as a factor under 95(2)(i) when deciding whether or not to order unequal division of family property. Ultimately, the Court refused to order unequal division of the family property, writing that the threshold for unequal division is “high”, and elaborating that the test had not been met because:

[130]     Balancing the evidence as a whole, I cannot conclude that Mr. V. is concealing assets. Mr. V. has disclosed the existence of the European Trust. He disclosed that he receives monthly distributions from the European Trust. Mr. V. has also disclosed that the European Trust has paid for his medical expenses in the past and has made charitable donations on his behalf. Mr. V. was forthright in disclosing that he believes that his siblings are also beneficiaries of the European Trust. I accept that Mr. V. sought a copy of the trust deed, and related information for his own edification on many occasions and that he has repeatedly been denied that information. It can be reasonably inferred that Mr. Suhner has not responded to Mr. V.’s requests for information made during the course of this proceeding.

[131]     Moreover, the evidence does not establish the nature of Mr. V.’s interest in the European Trust beyond the trustees having discretion to make distributions to Mr. V. from the trust. There is no evidence before this Court with respect to the duration of the trust, the value of its assets, and who the other beneficiaries might be. I conclude that there is an insufficient evidentiary basis before the Court to make any reliable conclusions regarding the attributes of the European Trust.

[132]     Similarly, there is an insufficient evidentiary basis for this Court to reasonably draw any inferences that Mr. V. has other undisclosed assets in Europe that generate income or the value of which may have increased since 2002. While I found Mr. V.’s evidence on the various financial transactions involving his siblings difficult to follow and somewhat inconsistent, I am not persuaded that I can make any reliable conclusions regarding undisclosed assets in Europe.

[133]     In the end, I do not consider it appropriate to draw any adverse inferences regarding the existence of undisclosed family property.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Family Law: I’m not listed on my child’s birth certificate – what can I do?

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The Vital Statistics Act requires that the birth of a child must be reported within 30 days.  In some circumstances, only one parent may report the birth.  For a variety of reasons when that happens, that parent may not report the particulars of the other parent.

Not being listed on your child’s birth certificate is understandably upsetting.  From a legal stand point, it is also beneficial for a child to have both parents listed on his or her birth certificate as this can impact the child’s right in some cases (e.g., in intestate succession).

The Vital Statistics Act sets out the procedures for amending a child’s registration of birth and birth certificate.

The simplest procedure is, if the parents together (or the parent who originally reported the birth) apply to the Ministry of Vital Statistics to change the registration.  This is done by filling out a form and paying the applicable fee.

If the parent who originally reported cannot, or will not, cooperate with you in making such an application, you can apply on your own.  However, this application will need to be accompanied by an Order of the court declaring that you are parent of the child.  Unfortunately, an Order that you are a guardian and have parenting time with the child may not be enough if there has not been an Order specifically declaring you a parent.

A parentage declaration Order can be obtained in either Provincial Court, or Supreme Court.  In order to obtain a parentage declaration, a paternity test many need to occur.  Both levels of court have jurisdiction to order this as well.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Valuation Date And The Former Family Home

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With the rapidly rising real estate market in British Columbia, one point of concern following separation can be when the former family home should be valued for the purposes of property division.  Should post separation market gains be included?  What if only one party is paying the mortgage?

Section 87 of the Family Law Act provides that unless an agreement states otherwise, or a judge orders otherwise, family property is valued as of the date of a separation agreement, or the date of the hearing to determine division of property as the case may be.

In the case of a separation agreement, the valuation date can be a point of negotiation.  However, if a family law dispute requires court intervention, there can be much less flexibility in dealing with the valuation of the family home.

British Columbia judges have interpreted this section as meaning that in the majority of circumstances, the date of the hearing (i.e. the present date) will be used unless there is good reason to use another date.  In order for some date, other than the present date, to be used, the courts have held that a present date valuation must result in “significant unfairness” to one or both parties.

Factors that will be considered in determining whether “significant unfairness” arises in these circumstances include whether one party has had sole use of the property, whether one party has been solely responsible for the upkeep and expenses of a property, whether the party who moved out has been prevented from purchasing a new property, or what expenses the party who has moved out has incurred for accommodations (e.g. rent).

As a result of this interpretation of section 87 and the current real estate market, the amount of time a family law dispute takes to resolve can significantly impact the division of family property.  Depending on the circumstances, one party may be more than happy to wait for resolution, while the other party may want to resolve the value of the family home as soon as possible.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Family Law: the Importance of Attending Court Hearings

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When you have been served with papers in a family law claim, it is essential that you and/or your lawyer attend Court on all scheduled dates.  The recent decision of AJD v. CD, 2018 BCSC 73 [“AJD”], demonstrates that missing a court date can result in an Order being made against the party who fails to attend a hearing, and also shows that having the Order set aside can be very difficult.

In AJD, a Respondent missed his court date and the judge, amongst other things, ordered the Respondent to pay $522,408.24 in child support arrears and ordered that the arrears were payable forthwith.  The Respondent appealed, but also filed a Notice of Application seeking, amongst other things, to have the Order set aside.  The Honourable Madam Justice Young wrote that to set aside an order when a party missed a hearing date, an applicant must show:

  1. the failure to appear was not wilful or deliberate;
  2. the application to set aside the judgment was made as soon as reasonably possible;
  3. the defence is worthy of investigation; and
  4. all requirements are established through affidavit material filed on behalf of the applicant.

With respect to factor 1 of the above test, Madam Justice Young wrote

[17]        I do not accept the respondent’s assertion that his failure to attend the court hearing was not wilful or deliberate.  I find instead that he was well aware of this ongoing court application which had gone on for over a year and he deliberately refused to open envelopes and inform himself of the status of the litigation.  I find it highly unlikely that [the respondent’s lawyer], who suggested the hearing date of July 24, 2017, would not communicate this with the respondent.

With respect to factor 2, Madam Justice Young wrote:

[21]        This application was brought on December 1, 2017.  I find this was made within a reasonable time albeit not as soon as reasonably possible.  The application was brought after the Order was entered which further restricts the jurisdiction this Court has in making any reconsideration.

With respect to factor 3, Madam Justice Young wrote:

[34]        I conclude that there are defences worthy of investigation, but because the respondent has not satisfied the Court that his failure to appear at the Hearing was not deliberate, this Court is not in a position to set aside the Order nor can this Court reconsider any portion of Order now that the Order is entered.  This Court is functus officio.

In addition to seeking to have the Order set aside, the Respondent also sought a stay of execution on the Order until his case could be heard by the Court of Appeal.  With respect to granting the stay of execution on the Order, Madam Justice Young wrote:

[40]        New evidence has been provided about the respondent’s current financial circumstances.  He is now separated from his second wife who holds an interest in all of his assets.  His home and bank account are in joint names with his spouse.  His RRSPs are in his sole name.  The claimant intends to enforce the Order.  If she does, he may suffer hardship pending the appeal.  Enforcement of the Order would liquidate most of his assets.  If he had to liquidate the RRSPs, he would incur significant income tax liability.  Once the funds were released to the claimant they would be difficult to reattach.

[41]        The respondent may suffer harm if the claimant successfully attaches his assets pending appeal.  I am not satisfied that this would be irreparable given that the claimant will likely not be able to liquidate the jointly held assets and I am uncertain whether the RRSP is attachable.

[42]        The claimant and the children have suffered actual harm for years by receiving far less child support than they were entitled to do.  The children still have needs as they embark on university education with no funds.  The claimant has incurred debt to meet their past needs and is not in a position to financially assist them with their educational costs.

[43]        On a balance, I find the actual harm to the claimant and the children is greater harm than the possible harm to the respondent.

[44]        The respondent has suggested a reasonable proposal in the alternative.  He acknowledges that some arrears exist and he offers to pay $5,000 a month toward the arrears pending the outcome of the appeal if a stay of execution is granted.  That payment would be in addition to the ongoing child support which he is paying.  This alternative would alleviate some of the immediate needs of the children.

[45]        I will grant a conditional stay of execution.  As long as the respondent continues to pay $5,000 per month commencing February 1, 2018 and continuing on the first day of each and every month until further order of this Court or the British Columbia Court of Appeal, then the execution of the Order shall be stayed.  If the respondent is in breach of the condition, the claimant may apply to this Court after the respondent has been in breach for 30 days to lift this stay of execution.

Therefore, while the Respondent succeeded in obtaining a conditional stay of execution in respect to the Order, if he failed to make payments as ordered by the Court, the Respondent risked having the terms of the original Order enforced against him.

 

If you wish to discuss a family law issue, please contact any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward at Heath Law LLP (250-753-2202) to make an appointment.

They can also be contacted by email at ksugiyama@nanaimolaw.com, cmurphy@nanaimolaw.com or nseaward@nanaimolaw.com

 

 

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Family Law – Best Interests of the Child

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The recent decision AL v. LW, 2017 BCSC 964 [“AL”] illustrates how the court might apply the factors for determining the best interests of the child under BC’s Family Law Act [“FLA”], and also illustrates how a “section 211” report may assist the court in determining the best interests of a child.

A section 211 report refers to section 211 of the FLA which authorizes the court to appoint a person to assess the needs of a child, the view of a child or the ability and willingness of a party to satisfy the needs of a child.  These reports were sometimes called “custody and access reports” or “parenting reports”.

In AL, the father sought increased parenting time with a child. The parties had never married but had lived in a marriage-like relationship. The parties had executed a Separation Agreement which addressed guardianship and parenting responsibilities.

The court also had the benefit of a section 211 report prepared by Dr. England.

The court noted that the key legislative provisions of the FLA that relate to increasing parenting time are sections 37 and 40, which are reproduced below:

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a)  the child’s health and emotional well-being;

(b)  the child’s views, unless it would be inappropriate to consider them;

(c)  the nature and strength of the relationships between the child and significant persons in the child’s life;

(d)  the history of the child’s care;

(e)  the child’s need for stability, given the child’s age and stage of development;

(f)   the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g)  the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h)  whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i)   the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)   any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

…

40 (4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a)  that parental responsibilities should be allocated equally among guardians;

(b)  that parenting time should be shared equally among guardians;

(c)  that decisions among guardians should be made separately or together.

The Court placed the above provisions in context by adopting KDP v. ARK, 2011 BCSC 1085 (CanLII):

[1]        No parents are perfect. All have flaws of one kind or another. If families stay together, except in those rare circumstances in which a child is found to be in need of protection, the state and the courts allow imperfect parents to raise their children as best they can. The children, in most cases, are no worse for wear for the experience.

[2]        If families separate, however, and issues of custody and access arise, in the guise of determining the best interests of the child, a parent’s flaws of character and conduct are put under a microscope. In such circumstances, care must be taken not to lose sight of the strengths that a party brings to the challenge of raising a child.

As an illustration of how the courts will consider the individual subsections of section 37 of the FLA, refer to the below paragraphs from AL, as drafted by Mr. Justice Funt:

[65]        With respect to s. 37(2)(a), … the daughter’s health and emotional well-being would benefit from far greater time with her father. The mother and father each has the qualities of a good parent as does the mother’s common-law partner. I agree with Dr. England’s statement: “There is no reason to deprive [the daughter] of the benefit of having her father as fully involved in her life as possible”.

[66]        With respect to s. 37(2)(b) and (c), it is apparent that once settled with her father, the daughter enjoys a caring, nurturing, and loving relationship. The daughter enjoys being with her father. I find that it would be in the daughter’s best interests to have far greater contact with her father.

[67]        With respect to s. 37(2)(d), the predominant history of the child’s care has been with her mother. For this reason, the transition as Dr. England recommends is a prudent course which I adopt as appropriate in the case at bar. I also adopt Dr. England’s recommendation that the daughter have individual therapy sessions with a copy of Dr. England’s report given to the therapist. I will also order that a copy of these Reasons be given to the therapist.

[68]        With respect to s. 37(2)(e), the parenting time Dr. England recommends will provide the needed stability. The parents share the view that the current schooling arrangements are appropriate and there are no plans of either of the parties to move from the Victoria/North Saanich area.

[69]        With respect to s. 37(2)(f), I am satisfied that each of the mother, the father, and the mother’s common-law partner has the ability to exercise appropriately his or her responsibilities.

[70]        With respect to s. 37(2)(i), the Separation Agreement addresses most aspects of guardianship and parenting responsibilities. Although I will not order the appointment of a parenting co-ordinator, I would encourage the parties to retain a parenting co-ordinator. Although the costs associated with a parent co-ordinator are significant, the costs are likely less than those associated with mediation or returning to court. A parenting co-ordinator can also make decisions quickly as the need arises.

The Court ultimately permitted the father to have increased parenting time in accordance with the schedule and transition periods set out in Dr. England’s section 211 report.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

 

 

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