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.

Marriage Agreements (for Married Spouses)

Division of property between spouses on a marriage breakdown in B.C. is governed by Part 5 of the Family Relations Act, R.S.B.C. 1996, c. 128 (“FRA“). Without a marriage agreement, assets that qualify as family assets are presumptively owned and divisible equally between spouses. This presumption of equal ownership and division can be rebutted by a spouse who satisfies the Court that an equal division would be unfair, taking into account specific factors listed in s. 65 of the FRA.

It is possible for spouses to contract out of the asset division regime under Part 5 of the FRA by entering into a marriage agreement. Some typical property division arrangements in marriage agreements, which differ from the division arrangements under the FRA, are as follows:

• Parties retain their respective property as separate property during and after the marriage, except for any property which is specifically registered or recorded in joint names, which is divided equally or under Part 5 of the FRA;
• All property owned by either party before marriage is kept separate during and after the marriage, but assets acquired by either party during marriage are divided equally, or under Part 5 of the FRA;
• All property is kept separate except that a graduated percentage share is acquired over time in property such as the matrimonial home and/or RRSPs by the non-owning spouse (eg. 3% per year to a maximum of 50%); and
• All property is kept separate but there is a graduated lump sum compensation to less affluent spouse on a marriage breakdown instead of a share of property.

Marriage agreements can also include provisions which address issues such as obligations for spousal support and responsibility for living expenses.

Effectiveness of Marriage Agreements

In 2004, the Supreme Court of Canada decided the case of Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550 (“Hartshorne“) in which the Court enforced a marriage agreement in a long-term traditional marriage where the wife’s entitlement to property was significantly less than what she would have obtained under the FRA. The Court emphasized that an agreement does not need to reflect the 50/50 entitlement provided by the FRA to be substantively fair.

The Supreme Court of Canada decided that, provided that certain requirements are met, the terms of prenuptial agreements will be enforced in all but the most unusual of cases. The Court reasoned that it should avoid substituting its idea of what is fair for what the parties believed would be fair at the time they entered into the agreement. Although the courts do reserve the right to set aside or overrule any terms in a prenuptial agreement which they believe to be unfair, in the post Hartshorne environment, courts are less likely to vary prenuptial agreements.

Cohabitation Agreements (for Common Law Partners)

As mentioned above, only married couples can claim for the division of assets under the FRA.  Since unmarried couples cannot apply for the division of assets under the FRA, they can only make a claim against assets owned by the other spouse under the common law of constructive trusts, express trusts or resulting trusts, or under the Partition of Property Act if they jointly own real property together.

Trust claims, based on common law, are more difficult to make than claims under legislation such as the FRA.  If a trust claim is successful, the amount awarded is generally less than what the property award would have been had the couple been legally married and the FRA governed.  It is possible for common law spouses to contract out of common law trust claims for property division by entering into a cohabitation agreement in advance.

Effectiveness of Cohabitation Agreements

Unmarried spouses (people who have lived in a marriage-like relationship for at least two years) can “opt-in” to the FRA property division scheme by making an agreement under s. 120.1 of the FRA. Some lawyers feel that this section of the FRA can be interpreted to mean that the FRA property division rules apply to any cohabitation agreement between unmarried spouses, even if the cohabitation agreement specifically provides that the FRA does not apply. The risk is that a common law partner, seeking a property award in the future, could ask a court to rely on the more preferential FRA rules and find that the cohabitation agreement was unfair.

As a result, there is some uncertainty with respect to whether or not a cohabitating couple should enter into a cohabitation agreement, if the agreement is meant to protect property. Since the Hartshorne case noted above, it is less likely that courts will impose FRA statutory property rules where a cohabitation agreement itself attempts to preclude a property claim. Of course, the FRA property division rules will still apply where a cohabitation agreement indicates that this is what the parties wish.

A cohabitation agreement is also a good option if children are being brought into the relationship, if one party wants to ward against the chance of a spousal support claim when the relationship ends or to deal with allocation of and responsibility for living expenses.

Explaining complex family law concepts and procedures in a jargon-free style, this resource includes detailed information on how family court works, offers easily understandable case examples, and describes alternatives to litigation that are designed to help prevent families with children from entering the legal system to resolve disputes. Exploring subjects that apply to all parties involved in resolving separation, divorce, and custody conflicts-judges, lawyers, mediators, parenting coaches, psychologists, family counsellors, and social workers-this reference demystifies the role of lawyers and judges, debunks the myth that parents can represent themselves in court, and examines each parent’s responsibility to ensure that post-separation conflicts are resolved with minimal emotional stress to children.

This book is written by Ontario family court judge Harvey Brownstone, specifically for the general public. It is not a legal textbook or self-help manual. Rather, it provides much-needed information for every separated couple contemplating going to family court to resolve parental disputes. The book explains what family court is, and equally importantly, what it isn’t. The author uses many real-life anecdotes to show the reader how harmful family court is for families, and how bad litigation is for children. Family court litigation is not like the court cases we see on TV, and the judge gives strong reasons why people need legal representation from a lawyer who specializes in family law. There is a strong desire on the part of the author to convince people to use family court as a last resort, and consider dispute resolution alternatives such as mediation or collaborative law.

Family Law Dispute Resolution Options for Clients Presentation Slides

Presentation Slides for Heritage Law Speaking Series Event

May 27, 2009, 8:00am to 9:00am at Capilano Golf & Country Club

Canadian Press Article:

OTTAWA — The country’s highest court has topped up a $1-million divorce settlement with an extra $649,000 for a British Columbia woman who complained her former husband hid assets and took advantage of her fragile mental health in negotiating a settlement.

In a 7-0 judgment Thursday, the Supreme Court of Canada effectively rewrote the original deal signed by Nancy Rick when her 28-year marriage to Ben Brandsema foundered in 2001.

Justice Rosalie Abella, writing for her unanimous colleagues, noted the court has ruled in the past that judges shouldn’t lightly interfere in settlements worked out between divorcing spouses.

“Parties should be free to decide for themselves what bargains they are prepared to make,” said Abella. But she went on to add that “this contractual autonomy depends on the integrity of the bargaining process.”

In this case, Abella concluded, there was ample evidence the two sides weren’t playing on a level field.

Jack Hittrich, the lawyer for Rick, welcomed the judgment as a “resounding victory” for his client but said it will have repercussions beyond her case.

“The underlying message for divorcing couples is that if a party is not coming to the table with clean hands there are going to be consequences,” said Hittrich.

“If parties negotiate fairly they have nothing to worry about.”

Rick and Brandsema reached a deal when they split up that gave the wife a house and cash payments worth just over $1 million, while the husband kept control of the family dairy farm and other lucrative property.

The aim was supposed to be to divide the family assets equally. But two years later Rick went to court to claim that Brandsema had misled her on the value of some of his holdings and had failed to disclose others at all.

She also maintained he exploited her emotional problems, including a history of depression, anxiety and post-traumatic stress arising from a troubled childhood and aggravated by a difficult marriage.

Brandsema’s lawyers argued Rick had exaggerated her mental health problems and had deliberately schemed to take the original $1 million and then go back to sue for more.

They also maintained that, when the tax implications of the settlement were taken into account for Brandsema, the deal worked out to a roughly equal division of assets.

A trial judge ruled Rick’s favour, concluding she was a “troubled woman” who had difficulty grasping the legal advice she go and the mediation process that led to the original deal.

The judge also found that Brandsema had taken advantage of her mental state and had failed to make full disclosure of his assets.

The B.C. Court of Appeal reversed those findings, stating that despite her mental troubles Rick “knew what she was doing,” and Brandsema had no obligation to tell her she wasn’t asking for enough.

The dispute renewed long-standing questions about when a negotiated divorce or separation agreement should be treated as final and when the courts should intervene. The issue has wide-ranging implications, since an estimated 90 per cent of divorces entail so-called amicable settlements rather than court-imposed orders on division of assets.

The Supreme Court, in a landmark 2003 judgment, stated that judges should be reluctant to interfere in most negotiated settlements. But it left the door open for intervention in exceptional circumstances – including cases where assets were hidden or the “vulnerability” of one partner was exploited by the other.

Abella said the B.C. appeal court misinterpreted some principles flowing from the 2003 ruling, while the trial judge got them right. She accepted his findings and endorsed his calculation of $649,000 as the appropriate add-on to Rick’s settlement.

Copyright © 2009 The Canadian Press. All rights reserved.