In matrimonial proceedings, our clients often provide us volumes of email exchanges between the separated spouses which purport to be helpful to the cause.  According to them, the missives, for example, show how the other side is denying access or deliberately concealing income, or whatever other issue is in contention.

Indeed, sometimes the exchanges are helpful, but often they are not, and only serve to waste a lot of time and money that is passed on to the client in their next bill.

Most people understand the basic concept: if a party to a proceeding makes an admission (be it orally or in writing), it can and will be used against them.  As long as the utterances are actually relevant to a point in contention, and as long as they are presented in their proper context, they can be very compelling evidence.

But because of the rules of evidence and the old hearsay rule, the key point is who is making the point and whether or not it constitutes an actual admission against their interest.  The flip side of the rule is that whatever you say can not be used by you to prove the truth what you are claiming.

So, for example, back to the emails:  those voluminous email exchanges provided by our clients will often be composed of primarily accusations by the client against the spouse, e.g. “you have denied me access on the following occasions and for the following phony reasons….[blah, blah, blah]”.

I have news for you:  those assertions are generally worthless and do not contribute a scintilla to proving the underlying allegation. They may be relevant to showing your state of mind (that you feel you were being denied access) and to proving that the other side was on notice that there was a problem, but not much else.  Obviously, if the spouse acknowledges the allegation as being true, then we have a classic admission and the entire exchange would be admissible to prove the point and, all other things being considered,  would be very persuasive.

Moral of the story:  before printing out those 86 pages of email exchanges, make sure that they actually contain admissions by the other side that are actually relevant to something in issue.  If 95% of the copy is yours, there is not likely to be much useful content in the exchanges, and you may just end up costing yourself hundreds of dollars in legal fees as your lawyer will have to review all 86 pages, on the assumption that there is something in there useful.

I had the opportunity to speak with CKNW’s Marcella Bernardo this weekend about anonymity of sperm donors in light of the recent landmark case Pratten v B.C. (A.G.) – Listen to or download the interview here

My view is that the underlying idea of the decision – that donor conceived children need to have access to information about their biological origins  – is correct.  That said, any change to the law to open up information available about donors must be accompanied by law reform that makes it clear that donors are not the legal parents of the child and should also give donors who donated in the past the right to veto disclosure about their identities. As with adoption, it is critical for the law to balance the rights of children to information about their biological origins with the rights of donors to privacy and with the interest of parents raising children in having a stable family unit where they are recognized as the full legal parents of the children. B.C.’s reformed adoption law provides an excellent model about how this can be done, but needs to be adapted to fit the assisted reproduction context.

I was on the Bill Good Show on Monday, June 13^th, 2011 to talk about the evolution and increasing use of social media in the context of family law.  A description of and an audio link to the interview are below:

 TURNING TO FACEBOOK TO CATCH A CHEATER: SOCIAL MEDIA AND DIVORCE

New York congressman Anthony Weiner’s marriage is in trouble after reports surfaced that he had taken pictures of his private area and sent them to a slew of women he did not know. And he’s not the only one in hot water after impulsively hitting the “send” button rather than thinking with his brain.  Research shows that social networking sites like Facebook and Twitter are increasingly being blamed for the breakdown of marriages. How are people getting caught red-handed online? How is this evidence being used against them in divorce court? And what does narcissistic personality disorder have to do with it all? 

For the complete interview: CKNW-June.mp3

One of the main reasons that intended parents choose anonymous sperm donors instead of donors they know is that the current law does not provide a mechanism for a sperm donor to formally relinquish legal parenthood, unless the intended mother has a partner who can adopt the child and the donor consents at the time of the adoption. Anonymity is currently the most simple and practical way to have some certainty that only the intended parent(s) will be recognized as the legal parent(s) of the child. I believe that any law reform relating to disclosure of donor information and identities in B.C. should include the creation of a mechanism for a sperm donor* to relinquish legal parenthood at the time of donation and prior to the conception of any child and for intended parent(s) to formally accept full parental responsibility.

At law, a donor is the natural parent of any child conceived using his sperm. A donor potentially has all the responsibilities and rights of a parent, including the right to apply to a court for custody or access and the responsibility to pay child support if the intended parent applies for support. The intended parent(s)* and a known donor may make an agreement that only the intended parents will have the responsibilities and rights of parenthood, and that the donor will consent to adoption if the intended mother has a partner, but such an agreement is not legally enforceable.

This is completely different than the reality in the adoption context. Under the B.C. Adoption Act, legal parenthood shifts from the biological parents to the adoptive parent(s). The law provides a legal  mechanism for the biological parents to relinquish their legal parenthood – by  consenting to the adoption – where the adoptive parent(s) agree to take on that responsibility. Once an adoption is complete, the adoptive parent(s) are the legal parents of the child, and the biological parents cease to be legal parents. This legal parenthood is reflected in all aspects of the law.

Although legally speaking there may be no difference between known and anonymous donors, in practice anonymity is a primary way that intended parents reach the same on-the-ground result as adoption. If a donor is anonymous, a single mother of a child born in British Columbia can declare that the father is unknown and no information about the father will appear on the birth registration. If the mother is in a relationship, the mother can include a co-parent on the registration (see http://www.vs.gov.bc.ca/births/breg.html ). The intended mother, and her co-parent if she has one, will effectively be recognized as the child’s legal parent(s).

A recent B.C. Supreme Court case would require the B.C. legislature to extend to donor offspring the same rights to information about their biological offspring as adoptees, thereby stripping some of the anonymity from sperm and egg donation (see my blog post “BC Court declares an end to anonymous sperm donation” about Pratten v. British Columbia (A.G.)). The case highlights the mechanisms that allow adoptees to obtain information about their biological origins, particularly as adults.

What is not discussed in the case – because it was not the question before the courts – is that the information sharing mechanisms of adoption only work because they exist along with the shift in legal parenthood which is the heart of adoption. Once an adoption is complete, adoptive parents have some certainty about their status as the only legal parents of the child. This is recognized as being in the best interests of the children. No (or only very rare) adoptive parents would adopt children in B.C. if their parental status was not certain.

I would argue that creating a legal mechanism for a donor to relinquish legal parenthood at the time of donation, prior to conception, in favour of the intended parent(s) is an essential part of any law reform dealing with gamete donation. This could include a mechanism for the intended parent(s) using donated sperm to formally accept full parental responsibility. This would create certainty about legal parenthood and reflect the intention of donor(s) who choose to assist others to have children but never planned to parent those children. It would provide some comfort to donors about the implications of any law reform providing for more open information disclosure. It would encourage more people to consider using known donors or being known donors. For the children conceived by sperm donation, predictability and stability of the intended family unit in childhood and the increased ability to obtain information about their biological origins, including identity disclosure in adulthood, are in their best interests.

* This post deals with sperm donation, but the mechanism could also apply to egg donors.

Join Karen Redmond and Nicole Garton-Jones of Heritage Law for lunch and a review of important upcoming changes to family law, wills and estates and incapacity legislation in BC.

Karen Redmond will review proposed significant changes to British Columbia’s family law legislation as set out in the Ministry of Attorney General White Paper on Family Relations Act Reform.

Nicole Garton-Jones will review the Wills, Estates and Succession Act (WESA), expected to come into effect in middle to late 2011. It repeals and brings together the current Estate Administration Act, Probate Recognition Act, Wills Act, and Wills Variation Act and also amends dozens of other provincial statutes.  Nicole will also outline changes to incapacity law as set out in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (Bill 29), which will come into force on September 1, 2011.

Pinnacle Hotel at the Pier

139 Victory Ship Way

North Vancouver, BC

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I was struck today by something that seemed inherently unfair, and I was reminded of an old saying, “all’s fair in love and war.”

Consider this: you and your husband have been having a difficult time in your relationship. You are writing about it in your diary, a place where you have kept your deepest darkest secrets since you were a teenager. Surely, your diary is private and no one would read it? Right? And if they did, it would be wrong wouldn’t it? They certainly couldn’t use it against you because its private, and you never intended that anyone would read it, right? Sadly, the answer is: not necessarily, in fact, in many instances, your diary entries can be used against you when you are involved in family law proceedings.

Mathews v. Mathews, 2007 BCSC 1825 considered this issue in deciding whether the wife’s diary could be used as evidence to determine her intentions in seeking her husband’s permission to relocate from Australia to Canada. The court found that the entries had probative value in that they were relevant to a determination of her intent. They were found not to be prejudicial to the wife because their origin could be determined, a complete diary could be produced to give context to the entries, and they had not been manipulated. The evidence was not prejudicial to the process, the court said, because it was possible that the parties could copy and read the diary, the cost was not prohibitive to the process. In a minor concession to the wife the court held that it did not approve of the invasion of the wife’s privacy, however, the finding was that it was not an illegal act (such as an illegal tape recording) and it was done in the husbands emotional state whilst he felt his relationship was about to break apart.

In the end result the diaries were admitted into evidence with the court finding that the reputation of the administration of justice would suffer more if the entries were excluded.

In matrimonial law, nothing is sacred. Take your teenage diaries, give them a final read and toss them in the woodstove if you have any doubts.

Stay tuned to this site for: Can secretly obtained tape recordings be used in family law cases?

The new rules of civil procedure in British Columbia will come into effect on July 1, 2010.   One of the changes will be to restrict the use of written interrogatories.

Under the old rules, Rule 29 allowed any party to serve questions in written form on another party to the lawsuit. This is a useful tool in matrimonial litigation, especially where you have uncooperative former spouses who refuse to provide documents or answer questions through the usual course of letters to opposing counsel.  Under Rule 29, the party asked to answer the interrogatories could object to specific questions, or bring an application to court to strike the interrogatories for example, but generally speaking, asking questions through Interrogatories is an effective means of gathering information and evidence in family law matters.

By submitting questions concerning a party’s financial records and making requests for documents within the interrogatory, the other party has an opportunity to go through his or her records, and review the questions and answers with his or her lawyer, which ensures accuracy of the response, and allows the asking party to rely on the answer as it forms part of the written evidence.   These written answers are much more useful and inexpensive to obtain, than setting the matter for hearing and asking the same questions during oral examinations, where the other party often does not know the answers off-the-top of his or her head or will not answer.  In written form and guided by counsel, more often than not, answers are provided within the timelines.

Under the new Rule 7-3, a party who wishes to examine another by written interrogatories must first get the other party’s agreement, or they have to apply to court and ask the court to allow the interrogatories.

This change in the Rules is unfortunate, and in my view, will have the opposite effect of what is intended. Instead of reducing the costs of family law litigation, in most cases it will increase the costs, since under the new rules, if the former spouse does not agree to answer interrogatories, you may be able to get a court order allowing interrogatories but it is an extra step, which adds to the expense for the client.

As with many areas of law, there are myths surrounding divorce and separation, which cause confusion, and leave non-lawyers feeling like they have more questions than answers.  Confusion around rights and responsibilities, when coupled with an imbalance in a personal relationship can have a disastrous result.  Too often it is the person with the most money, who can hire the most expensive lawyer who “wins.”

We strongly recommend that you seek legal advice prior to entering into any agreement, whether it is a family law agreement or any other type of agreement. If you have been presented with a document and you do not understand your rights, you need to get legal advice.   An hour on the phone with a qualified lawyer is well worth the cost and can save you money and the aggravation of dealing with a poorly drafted agreement that does not protect you or your rights.

Top ten myths in family law

These are clearly over simplified and you should seek legal advice if you require further information.

Read more….

You are not alone if you panic when you have to bring on a chambers application for short leave notice under Rule 3(3.1) of the Rules of Court.

A short leave application sounds simple but it is not. It is an application made either without notice to the opposing party or when the parties have not reduced the usual time limits set out in Rule 51A (11 days if under Rule 18A or 8 days otherwise). The applicant has the onus to apply to the Court and explain why the usual time limits are not appropriate and why the nature of the application is urgent.

There are many reasons for urgency, such as an adjournment of a trial, production of various records, an independent medical examination that is scheduled on short notice, restraining orders or injunctions. One counsel may need to get the time limits reduced in order to bring on a cross application that has already been set down.

The materials to be prepared for a short leave application are:

 The Notice of Motion for the original relief you are seeking;
 An Affidavit in support of the original relief;
 An Affidavit in support of the short leave application (if not included in the first Affidavit); and
 Short Leave Requisition requiring that leave be granted to reduce the time requirements.

Once these materials are prepared, counsel must take the documents to the Court registry for filing. Short leave applications are generally placed on the chambers list on the same day as they are filed in the court registry.

It is a good practice to notify opposing counsel of your intention to seek short leave and provide the materials to them before attending in Court. Also, try to obtain opposing counsel’s available dates for the hearing of the main application and their position with respect to any of the proposed new time limits set out on the Short Leave Requisition.

If you seek short leave without notice to opposing counsel, the Court will want to know what attempts you have made to contact the Respondent(s) and why no notice was given. These items should be set out in your Affidavit supporting the short leave application.

The Judge/Master or Registrar will make a decision on the facts whether urgency allows an application to be heard in chambers on short notice. If the short leave application is granted, the Court will then fix a date and time for the main application to be heard. The Court will also complete and sign the Order by Endorsement on the Short Leave Requisition. The Order sets out conditions and new time limits for delivery of the Notice of Motion, Affidavit(s), Response(s), reply Affidavits, Outlines and when the Chambers Record should be filed.

When short leave has been granted, the time limits set out in Rules 10, 44 and 51A do not apply. In addition, Rule 3(3.1)(iv) also states that the Court can “give such other directions as may be appropriate”.

Finally, you must prepare additional materials including:

• A Notice of Hearing;
• The original Short Leave Requisition; and
• the usual contents in the Chambers Record.

Once all the filed documents come back to the office, it is a priority to ensure that all the chambers materials, including the Order by Endorsement, are delivered according to the new time limits. Make sure that you retain proof of service of the documents upon all parties.

A good idea is to place the service confirmation documents in a separate tab at the back of the counsel’s chambers binder for their easy reference. When counsel attends for the hearing of the main application, they will need to advise the Court that all delivery conditions set out in the Order of Endorsement have been met.

Once you have completed one short leave application by following the above steps, any future urgent applications should proceed without any surprises.

A desk order divorce may be obtained where the only issue between spouses is the divorce itself or where the spouses have already settled all of the other issues, such as child custody and access, spousal support and division of family property, whether through a separation agreement or an agreement reached as to the terms of a court order. To obtain a desk order divorce, court proceedings are initiated but appearing in court before a judge is not usually required.

The following outlines the usual process to obtain a desk order divorce:

(a) Drafting of a Writ of Summons and Statement of Claim, which is filed with the court, together with an original certificate of marriage – we will ask you to review and approve this document before it is filed, but it can be signed by us on your behalf;

(b) Arranging service of the filed Writ of Summons and Statement of Claim on your spouse – please ensure that you provide us with a photograph of your spouse to give to the process server;

(c) Waiting for expiration of the time given to your spouse to file a response (an ‘Appearance’ and a Statement of Defence) – your spouse has 21 days to respond. If your spouse does not intend to defend or contest your claim for a divorce, he/she need not take any step whatsoever;

(d) Drafting of the final documents required to obtain your desk order divorce, including the divorce order and affidavit(s) – again, we will send you the final documents that you must sign for your review and approval. You will then be required to meet with us to sign those documents;

(e) Reporting to you – upon receiving the divorce order, we will send you a copy. You are also required by the Supreme Court Rules to mail a copy of the order to your spouse, which we will do on your behalf.

Your divorce will take effect on the 31st day from the date of the court order. Once the 31-day period has passed, we will request a Certificate of Divorce from the court and send that to you. At that point, our services will be at an end.

Fees:

Our fees will be fixed at $1,600.00 if there are no children and $1,800.00 if there are children, which includes all legal fees, out of pocket expenses, including court filing fees, postage, photocopies, G.S.T and P.S.T.

Our fee of $1,600.00/$1,800.00 does not include our out of pocket expense for service of the documents on your spouse, which generally costs in the range of $50.00 to $150.00.

The information and documents we require to commence the process on your behalf are:

• Your full legal name as on your marriage certificate;
• Your spouse’s full legal name as on your marriage certificate;
• Your address, date of birth and how long you have been resident in British Columbia for;
• Your spouse’s address, date of birth and how long she has been resident (or not) in British Columbia ;
• Your date of marriage and place of marriage (pleasure ensure that our office receives your original marriage certificate – this has to be filed with the court documents. If you do not have an original marriage certificate, then we can order one for you from the appropriate Vital Statistics office);
• When did you commence cohabitation (living together) with your spouse (month and year);
• When did you and your spouse cease to cohabitate together (exact date would be great);
• Please provide full legal names of any children involved including dates of birth and whom they are residing with;
• Please provide the same information if there are any step-children involved;
• Has there been any agreements made regarding support or division of property;
• Spouse’s surname prior to marriage AND at birth;
• Your surname prior to marriage AND at birth;
• Marital status of you and your spouse prior to your marriage i.e. never previously married, divorced etc.