Vancouver appellate lawyer Lorne N. MacLean, QC handles complex Vancouver family appeal cases including appeals on financial and child parenting issues to both of the BC Court of Appeal and the Supreme Court of Canada. Mr. MacLean represented Ms. Young in her successful Vancouver family appeal to the Supreme Court of Canada in the leading custody case of Young V. Young and for Mr. Leskun in the high profile Vancouver family appeal SCC spousal support review case. Mr. MacLean also recently succeeded in opposing a Vancouver family appeal leave to the Supreme Court of Canada application in Lightle v. Kotar  from a decision where Mr MacLean obtained a nearly three fold increase in monthly spousal support for his client. Other successes in the BC Court of Appeal include setting new law on amortization and support in a family business case and establishing that the biological parent has the primary role in child support cases involving a step parent.

Vancouver family appeal lawyer, Lorne MacLean, QC

The BC Court of Appeal just granted Mr. MacLean a rare stay of proceedings in the Vancouver Family appeal case of Solis v. Tibbo-Lenoski  preventing the immediate return of children to Mexico based on Mr. MacLean’s recent arguments on Mr Tibbo-Lenoski’s behalf in a Hague Convention wrongful retention case.

The official summary of the successful result of Mr. MacLean’s Vancouver family appeal stay application states:

The appellant father applies for a stay of proceedings on a judgment of this Court pending his application for leave to appeal to the Supreme Court of Canada. The appeal concerns the interpretation of Article 13(b) of the Hague Convention. The father had removed his twin boys from their habitual residence with their mother in Mexico. One of the boys, D, has autism and is undergoing intensive autism treatment in Vancouver. The father claimed that the unavailability of appropriate autism therapy in Mexico engaged the grave risk of harm exception in Article 13(b). The chambers judge ordered the boys to be returned to Mexico and this Court upheld that decision. Held: application allowed. With respect to the merits of the appeal, there is a sufficient likelihood that the Supreme Court of Canada might grant leave to appeal. As for irreparable harm, the findings of fact of the chambers judge suggest that D may suffer serious harm if he is returned to Mexico and any such harm would likely be irreparable given the time sensitive nature of his treatment. Finally, the balance of inconvenience favours granting a stay.

Here are the key extracts of the rare  Canadian stay application success:

[10]        Before turning to the merits test I acknowledge as a starting point that, insofar as it is appropriate to express the proposition in this way as the case involves a child, a successful party is entitled to the fruits of his or her judgment. This, I agree, is a pressing and substantial consideration in the context of an international regime designed to ensure the prompt return of children who have been removed from the jurisdiction in which they are habitually resident, to reduce the incentive to engage in child abduction, and to ensure that a determination of a child’s best interests and custody issues associated with that question are dealt with in the jurisdiction of a child’s habitual residence and not in the context of a Hague Convention application.

[11]        Secondly, nothing I say on the merits test for the purpose of deciding whether a stay should be granted reflects in any way on the correctness of this Court’s decision.

[12]        I am persuaded, however, that this is a case that satisfies the applicable merits test. Here the uncontested finding is that withdrawal of the autism treatment will result in serious harm to D. This Court was bound by Thompson and did not consider that the other cases relied on by the appellant expanded on an interpretation of Article 13(b) as requiring real, immediate, and grave harm.

[13]        In my view, there is a reasonable possibility that the Supreme Court of Canada might grant leave in this case. The scope and meaning of what constitutes a grave risk of psychological harm or an otherwise intolerable situation has not been considered by that Court in 20 years and has not been considered at all in the context of a serious disability such as autism where critical treatments are available in some jurisdictions but not others. It may be that the Court would find that the Australian High Court decision and the U.S. 2^nd Circuit decisions relied on by the appellant in this Court signal a somewhat less restrictive interpretation of Article 13(b) in this context or, alternatively, that on a proper interpretation of the Article even in light of what was said in Thompson, the risk of harm here should properly be characterised on the facts as a risk of grave harm or as a return to an intolerable situation. Even though this is not a case where there is conflicting provincial appellate authority, I think there is sufficient prospect that the Supreme Court of Canada would decide that this case meets the test to grant leave, that the threshold merits test for the purpose of a stay is met.

[14]        In saying that, I acknowledge the argument advanced by Ms. Solis that Thompson may be regarded as having laid down settled and clear principles (indeed I have adopted that view in a judgment of my own written for this Court in a Hague Convention case). It may also take the view, and I acknowledge the argument advanced by Ms. Solis, that the question of harm is one of fact, and that one can reasonably adopt a perspective on this case that it is really is an attempt to litigate the best interests of a child in the wrong forum under the guise of an exception to the Convention. Nonetheless, I cannot but conclude that there is sufficient merit to the application that Mr. Lenoski satisfies the threshold merits test.

[15]        I am also persuaded that the irreparable harm test has been met. I reject the argument that I should consider only the interests of the parties. In my opinion, I should focus principally on harm to the child, if a stay is not granted. The critical question, in my view, is whether the child would suffer irreparable harm if the appeal is ultimately successful and a stay has not been granted. On the facts, in the absence of a stay, D would return to Mexico and would be deprived of the treatment at least until the appeal is decided. It seems incontrovertible on the findings of fact made by the court below that the treatment is not only critical and beneficial to D, and its potential benefit is time sensitive. Depriving D of the treatment at his age and for the duration necessarily involved in an appeal if leave is granted would seriously harm D in a way that would not likely be reparable.

[16]        Finally, I turn to the balance of convenience. I accept that Ms. Solis has been D’s primary caregiver and provides a loving environment for him and his twin brother. I also proceed on the assumption that if the stay is granted the mother may find herself compelled to return to Mexico without her children. She may choose to stay in Canada, but for the purpose of this analysis, I will assume that she will not. I will also accept, again for the purpose of this analysis, what I know to be disputed as a matter of fact; namely, that the father has not contributed properly to her while she has lived here. Finally, I do think that it is appropriate to weigh in the balance that delays in the rightful return of children compromises or can potentially compromise the objects of the Convention and that here there is a forum in Mexico in which the father might be able to advance the interests of the twins in dealing with custody issues.

[17]        Balancing those considerations against the harm that D would probably suffer if deprived of the autism treatment I have concluded that the balance of convenience favours granting a stay. Mr. Lenoski has offered undertakings to contribute financially to Ms. Solis’ expenses if she chooses to stay in Canada. I am not making those undertakings a condition of the stay because I do not know what the mother will decide to do in the face of what is indubitably a very hard choice for her. If she does stay, however, then I expect Mr. Lenoski to live up to his word in every last particular.

[18]        This case is one in which the interests of the parties and most particularly D and his twin brother require that the issues be dealt with expeditiously. Under the Supreme Court Act Mr. Lenoski has 60 days to file his application for leave to appeal. Given the evident extent of the preparation of the issues in this appeal, I see no reason why the leave application cannot be filed well within the 60 days. I am making an order staying execution of the effect of the order of this Court for 45 days provided that if the leave application is filed on or before 45 days of the pronouncement of this Court’s order, the stay of proceedings for execution will be extended until such time as the Supreme Court renders its decision on the leave application. Thereafter, whether the stay is extended would fall to be decided by the operation of s. 65 of the Supreme Court Act or by a further order of that Court. I refer to s. 65 of the Supreme Court Act because on my reading of it, if leave were granted by the Supreme Court of Canada then the proceedings in this Court would be automatically stayed by operation of the statute. Failing that being the case, any further stay would be for the Supreme Court of Canada.

[19]        There will be no order for costs.

If you have a difficult and compelling Vancouver family law appeal you would be well served by having an experienced Vancouver family appeal on your side. call us toll free across BC at 1-877-602-9900.

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打算借钱给婚姻中的子女？您一定要回避这些问题！

在卑诗省，我们的家庭婚姻法律师对父母在子女婚姻中贷款与借款可能产生的影响有丰富的经验。如果夫妻中有一人的父母在两人的婚姻中借钱或贷款给他们，而他们要面临离婚，那么BC省新实施的《家庭法法令》可能会对他们有所影响。如果父母在借钱时没有相应的合约，而只是口头说说或是握个手就了事，以后事情就会变得很麻烦。如果您在卑诗省而且有这方面的疑问，欢迎您随时拨打我们的免费专线1-877-602-9900，与我们对婚姻中父母贷款、借款有丰富经验的律师团队联系。

打算借钱给婚姻中的子女？您一定要回避这些问题！

如何避免犯下大错

父母卷入子女离婚财产划分纠纷最常见的起因就是他们在子女婚姻中借钱或贷款给后者，无论是帮助子女买房子或是在其经济困难时帮一把手，帮他们还清债务。在子女婚姻结束时，双方往往对这些钱到底是“借”的、“贷”的、还是干脆就是“给”的，会有不同的意见。如果您的本意是借或者是贷给子女钱，请务必要签下相应的合约。如果不这样，您的“贷款”很可能就会在子女离婚时变成争端的中心——双方可能会就它到底是贷款还是一份大礼而争论不休。

在法庭如何判定过户的钱到底是借还是给的话题上，我们已经写了几篇文章来专门介绍。另外我们也介绍过如果本意是借的钱如果没有书面凭据作证的话会发生什么情况。所以，这篇文章里我们假定您在当初借钱的时候已经同时把所有的字据都准备妥当了。

如果您是想借钱给子女，现在就写下字据以免将来头痛——而且还要记得追讨欠款是有时间限制的！

如果您确实是借钱给子女，那么一份条款清楚的登记的贷款证明（registered mortgage）或是一张欠条(promissory note)就可以防止您在几年之后为上述情况而头痛不已。但是您也要千万记得——

您追讨欠款的权利是有期限的！

1. 如果您的欠条是在2013年6月1日之前签署的，您只有6年的时间可以追讨欠款，而且是从您在签署欠条的那一刻开始计时。如果您在六年之内没有收回借款，而且你想把你的钱讨回来，您必须要在6年期限到期之前就提出诉讼追讨，否则卑诗省旧的《有效期限法》(BC Limitation Act) 会在6个月期限到期之后永久性地取消您诉讼追讨这笔钱的权利。这个规则是卑诗省最高权威的法院——BC省上诉法院（BC Court of Appeal）在其2014年做出来的判决 Kong v. Saunders 中重复强的。                                                    
2. 但是，如果您的欠条是在2013年6月一日之后签署的，那么新的《有效期限法》就生效了。在新法中，有效期限改为2年，但它并不是从您签下欠条那一刻算起，而是从您第一次开口和欠款人要钱的那一刻开始算起（详情参见新的《卑诗有效期限法》第14条）。 

借钱而没有留下字据，那就怪不得别人了。

卑诗新的家庭婚姻法《家庭法法令》(Family Law Act) 相关的案例都说明：如果您在借钱的时候没有留下任何相应字据，那您的钱会被假定为是送的礼物。所以，您在借钱给别人的时候请务必考虑再三，做出明智的决定。

只需要您的一通电话，我们在卑诗省对父母借款贷款之话题有相当经验的律师团队就可以在您借钱出去之前指导您如何正确的处理下一步的动作，让所有人都清楚地知道您的本意。我们在温哥华，基隆那，素里，圣约翰堡都有分部，请拨打我们的免费电话：1-877-602-9900，与我们在跨越卑诗省的四个分布中的一个坐下来详谈。

The post 打算借钱给婚姻中的子女？您一定要回避这些问题！ appeared first on MacLean Family Law.

Our Surrey spousal support SSAG lawyer team routinely explains to our spousal support clients that the correct calculation of spousal support is tricky.  Be careful to hire an experieinced Surrey spousal support SSAG lawyer or you may overpay or receive thousands of dollars less each year than you should. Our top Surrey spousal support SSAG lawyer group knows that net disposable income is used to properly calculate spousal support under the SSAG. Correctly calculating the incomes of the spouse’s and the proper expenses and deductions for each is crucial to avoid mistakes.

Surrey spousal support SSAG Lawyer 604-576-5400

In Anderson v. Klahm the BC Supreme court decision reiterated the key rules to be applied to ensure a proper support calculation occurs:

[35]         …..The SSAG use net disposable income for the purpose of determining spousal support. Net disposable income under the basic SSAG with children model is calculated by starting with the parties’ respective Guideline incomes and then deducting child support payments and s. 7 expenses. Next, income taxes and “other deductions” are subtracted from the incomes of both the payor and the recipient to obtain net disposable incomes.

[36]         Article 8.3.1 of the SSAG discusses “other deductions” as follows:

Clearly permissible deductions are federal and provincial income taxes, as well as employment insurance premiums and Canada Pension Plan contributions. Union dues and professional fees are already deducted from Guidelines income under the adjustments of Schedule III to the Federal Child Support Guidelines. Deductions should be recognized for certain benefits, e.g. medical or dental insurance, group life insurance, and other benefit plans, especially those that provide immediate or contingent benefits to the former spouse or the children of the marriage.

[37]         The procedure for spousal support recalculation defined in clause 24 of the agreement focuses on the parties’ incomes, child tax benefits and the children’s extraordinary expenses (clause 18). There is no reference to disclosure of other expenses such as life insurance and other benefit plans that would support the type of deductions discussed in Article 8.3.1 of the SSAG.

[38]         This apparent ambiguity in the language of the agreement requires the court to consider extrinsic evidence of the parties’ intentions in regard to the calculation of net disposable income. The fact that there was no discussion of how income was to be determined under clause 22 during the parties’ negotiations is not evidence of their intentions. However, the fact that the parties used a straightforward net income calculation to determine the initial spousal support tends to support the claimant’s position.

[39]         Clauses 22 to 24 of the agreement must be interpreted in a manner that reflects the language used by the parties, recognizes the basic principles of the SSAG, is consistent with the initial determination of spousal support and, at the same time, respects the underlying purpose for recalculating spousal support based on a significant change in the parties’ incomes. All of these factors lead me to conclude that there must be a deduction for extraordinary expenses, as well as child support. Further, child tax benefits received by either party must be added to their incomes for the purpose of calculating net disposable income.

Call us at 604-576-5400 to meet with on eof our experienced Surrey spousal support SSAG lawyer members.

The post Surrey Spousal Support SSAG Lawyer appeared first on MacLean Family Law.

The spousal support economic self sufficiency lawyers at MacLean Family Law have noticed an increased and welcome focus by the BC courts on the importance of spousal support claimants striving for economic self sufficiency. In the early 1980’s the “clean break” break principle was in vogue but since then a more generous support entitlement analysis was followed. Sadly, in some cases spouse’s who received support may not have had the incentive to pursue retraining or a career as robustly as they should have and as a result may have not fully benefited or succeeded financially. If you have an issue with your spouse not attempting to achieve spousal support economic self sufficiency contact us across BC now.

Spousal support economic self sufficiency lawyers Lorne MacLean, QC and Spencer MacLean

Now that the Canadian economy has taken a big downturn spouse’s who placed their “economic support eggs” all in one basket may be hit hard if their paying ex spouse has lost their job. Spousal support economic self sufficiency is ever more important now when no one’s job is safe and disruptive job market forces are at work. Spousal support economic self sufficiency is all the more important when separated parties are both trying to by a new house and move on.

I have always said a strong Canada and family system requires paying ex -spouse’s to keep working to their capacity while equally requiring recipient spouse’s to get back into the work force for their own sake as well as for the sake of their children who need two working parents to maintain the same lifestyle after separation. Spousal support economic self sufficiency is not an absolute duty but is at a minimum a goal that must be vigorously not have heartedly pursued. Lorne MacLean, QC argued these principles in the leading spousal support economic self sufficiency case of Leskun v. Leskun.

In the recent case of Pastor v. Klusiewich the court dealt with this issue and denied spousal support to a spouse looking at the three bases that support may be awraded on as well as the principle of encouraging self sufficincy. Here are the key extracts bolded for the best parts:

Spousal Support 

[36]         Neither party has earned more than a modest income. As I have mentioned I am somewhat sceptical of the respondent’s reporting of his income but I have no sufficient basis on which to impute income to him. The claimant seeks spousal support. The evidence does not lead me to conclude that the claimant cannot earn an income to at least a level she had during the marriage. She has in recent times been employed as a fitness instructor which I understand provides less than the income she could have earned by seeking other employment. Her choice to earn a relatively small income should not be visited on the respondent. In Jendruck v. Jendruck, 2014 BCCA 320 at para. 16, Madam Justice Saunders for a unanimous Court wrote the following: 

[16]         Consistently, the courts have affirmed and applied the objective in the Divorce Act of striving for economic self-sufficiency, while recognizing that attainment of full economic self-sufficiency may not be practicable. To the degree effort could be made by a party to contribute to his or her own support in the circumstances, and effort has not been made, the courts have said the consequences of that party’s choice falls on them. The courts do not, and cannot, say a person must take up any particular employment. It is a free society in which people may choose how to spend their hours. However, where the effort to contribute to one’s own support is deemed insufficient in all the circumstances, the court will place the consequence of the inadequate effort on the person whose choice it is, and may do so by the vehicle of imputing income for under-employment.

[37]         Section 15.2(1)(4)(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) reads as follows:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

…

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.

…

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[38]         There are three bases for an award of spousal support, namely compensatory, non-compensatory and contractual. See: Chutter v. Chutter, 2008 BCCA 507. The compensatory basis has application when a spouse has made sacrifices in assuming child care and household duties during the course of the marriage resulting in a lower earning potential. The compensation basis has no application here and, furthermore, the marriage was relatively brief (7 years). The non-compensatory basis is to alleviate hardship as a result of the breakdown of the marriage. The “means and needs” of the parties are to be taken into account. In this present matter I can detect no difference in the means and needs of the parties. Furthermore, the claimant used and exhausted savings which were a family asset. It would be unfair now to impose a spousal support obligation on the respondent. There is no contract between the parties concerning spousal support. The application for spousal support must be dismissed. In all the circumstances I decline to make a compensation order pursuant to s. 97(2)(c) of the Family Law Act in favour of the respondent. 

Talk to one of our highly experinced lawyers including the highly skilled Lorne MacLean, QC if you have a spousal support economic self sufficiency dispute. Call us across BC toll free at 1-877-602-9900.

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A family property date of separation case requires the court to divide property acquired during the relationship and BEFORE separation. Property acquired post separation that is not derived from property acquired during the relationship is not shared. The date of separation is also relevant for whether spouses have lived together for the required period to enable a claimant to qualify for spousal support and property division relief. The starting and end dates of a relationship in a family property date of separation case are critical in determining what property gets shared.  Contact us now to get help in this tricky area.

MacLean Law family property date of separation lawyers

Our skilled family lawyers deal with medium to high net worth family property separation date cases on a regular basis and can help you focus on what the start date and end date of your relationship was to get you the proper family property date of separation dispute case result. In a recent BC Supreme Court case of McGrail v. McGrail, the court reviewed the rules to be applied to a family property date of separation case and reviewed the statute and the case law on point in deciding the date of separation is crucial for deciding if a property is divided or not. Here are the important portions of the decision for family law clients in BC:

[30]         Part 5 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] deals with the division of property and debt between separating spouses. Pursuant to s. 81(b) the starting point is that each spouse “has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.”

[31]         Subject to s. 85, which deals with excluded property, under s. 84(1), family property is all real property and personal property owned by at least one spouse on the date the spouses separate.

[34]         Thus, the date of separation is critical to the determination of what constitutes family property and family debt.

[35]         The claimant argues that the phrase “or order that provides otherwise” in s. 81 would allow the court to utilize a date other than the date of separation for determining family property and family debt.  The claimant argues that in this case the court should utilize the date of trial. This would have the effect of eliminating the significance of the date of separation issue. It would render the interest of Mr. McGrail in the Nickyboy Trust family property or allow for compensation in respect of the New Zealand properties under s. 97(2)(c).

[36]         No authority was cited for the proposition that the court has such a jurisdiction.  I am not persuaded that the opening words of s. 81 would allow me to make the order suggested, in the circumstances of this case.

[37]         As a result, the first step in this case must be to determine the date of separation.

B.              Date of Separation

[38]         Section 8(3) of the Divorce Act, R.S.C. 1985 c. 3 (2^nd Supp.) [Divorce Act] reads:  

8(3)(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other…

[Emphasis added.]

[39]         Intention is key to the analysis. It need not be a mutually shared intention; a unilateral abandonment of the matrimonial relationship is sufficient:  Dhillon v. Dhillon, [1998] B.C.J. No. 823 (C.A.), affirming the decision at trial of Bauman J., citing Lachman v. Lachman (1970) 2 R.F.L. 207.

[40]         In Nearing v. Sauer, 2015 BCSC 58, Madam Justice Fleming stated (para. 54) that the case law also requires that the spouse who wishes to separate take action consistent with that intention.  She referred to the following quote from Field v. McLaren, 2009 MBQB 118:

[10] Certainly I accept it is settled law that the intention of one party to separate may be sufficient to sever the relationship. Judged objectively though there must be evidence that an intention to separate was not only held, but was communicated to the other party and acted upon. The person desiring to separate must act in a way consistent with an intention to separate.

[Emphasis added.]

[41]         After referring to other authorities Fleming J. stated:

I do not interpret the authorities as requiring the spouse who intends to separate to demonstrate absolute certainty that the marriage is at an end. Such a view would be inconsistent with the express language of s. 3(b)(ii) of the Divorce Act. It is enough to communicate an intention to separate, accompanied by actions consistent with that intention, assuming, of course, there is a form of physical separation between the spouses. (para. 59)

[42]         While the matter is not free from ambiguity, I fix the date of separation as September 1, 2010.

If you wonder what the impact of your relationship and its breakdown has on your family property date of separation case you should get immediate legal advice from a top family lawyer at MacLean Law. We have offices in Vancouver, Surrey, Kelowna and Fort St John and you can call us toll free 1-877-602-9900.

The post Family Property Date of Separation appeared first on MacLean Family Law.

Our undue hardship support lawyers at MacLean Law often need to review claims for undue hardship by paying spouses related to support payments for their children. This undue hardship support exception was put in the Child Support Guidelines back in 1997 when it first came into force. Winning an undue hardship support case is very difficult and we often use other strategies to seek to obtain credit for our paying clients who are hard pressed financially to pay full child support when they are paying other expenses that benefit the separated family or children. We also aggressively ensure proper support is paid for the children after separation when acting for the receiving spouse.

Laura Allan, undue hardship support lawyer

Our MacLean Law undue hardship support legal team is BC’s largest both in size and number of offices. The team is led by Lorne N MacLean, QC one of Canada’s most experieinced and accomplished d family lawyers. When seeking or defending an undue hardship support case the legal experience of your lawyer counts.

The undue hardship support case of Kelly v. Kelly, 2011 BCCA 173 makes it clear the test is quite restrictive and will often result in a rejection of a claim to reduce child support based on difficult financial circumstances. The court will assess whether the paying spouse’s lifestyle is dramatically impacted by a number of factors. Mild financial discomfort will not cut it in a undue hardship support.

Here is how the test works: 

[33]           A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis. First, the parent applying for relief must demonstrate the undue hardship that will be caused by paying Guidelines support. Section 10(2) sets out a non-exhaustive list of factors that may be considered at this stage, including “an unusually high level of debts” incurred prior to the separation or “to earn a living”, and “unusually high expenses in … exercising access”. This first step has a high threshold. The hardship that must be established is described in the authorities as severe, extreme, improper, unreasonable, or unjustified: Van Gool v. Van Gool (1998), 59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51.

[34]           If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent’s household under s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than the recipient if a reduction in Guidelines support is made.

[35]           If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other than that required by the Guidelines. This is a narrow discretion, however, and should be exercised cautiously to avoid thwarting the Guidelines’objectives of predictability and consistency: Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada (Irwin Law: Toronto, 2009) at 302.

[36]           I am persuaded there are two difficulties with the chambers judge’s treatment of the respondent’s claim for undue hardship. First, nothing in his reasons demonstrates that he recognized the stringent threshold the respondent had to meet to establish undue hardship. Second, in finding there was undue hardship, the chambers judge had not yet turned his attention to the issue of spousal support, which not only placed additional income in the respondent’s hands, but also took into account her access costs. Had the chambers judge considered these factors, I am satisfied he would have concluded the respondent failed to meet the high threshold required to establish undue hardship.

Our lawyers can help you argue for or against an undue hardship support claim but you need to meet with us promptly so you know you and your children’s undue hardship support rights. Call us toll free at 1-877-602-9900 to get the help you need today.

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Our Vancouver spousal support lawyers understand that the start date of support is critical both for the spouse who requires support as well as for the person who has to pay it.

Many times, for a variety of reasons, our Vancouver spousal support lawyers are asked to deal with the prickly issue of retroactive spousal support. Contact our Vancouver spousal support lawyers at 604-602-9000 or simply click here.

Vancouver spousal support lawyers founder Lorne MacLean, QC

Principles for Entitlement Explained By Vancouver Spousal Support Lawyers

When deciding:

• whether a spouse has an entitlement to spousal support,
• the monthly amount of Vancouver spousal support payable;
• the duration of spousal support;

the court will  need to assess whether the principles of contractual, compensatory and non compensatory support apply and if so where on the range of the spousal support guidelines the amount and duration should fall. Longer marriages will often lead to higher Vancouver spousal support payments and the potential for indefinite support subject to variation on a material change or review is greater.

Retroactive Spousal Support

When our Vancouver spousal support lawyers are dealing with retroactive spousal support a number of additional factors apply. In this blog our Vancouver spousal support lawyers have extracted the principles of retroactive spousal support from the recent BC Supreme Court decision in Reay v. Reay:

[42]         The claimant seeks retroactive spousal support from March 20, 2010 to the date of hearing. She asserts that “[d]espite multiple requests for spousal support from the Respondent, he has paid no spousal support to me since we separated on March 20, 2010”. She does not state how or when those requests were made. The only clear evidence of a request for spousal support is found in the notice of family claim filed on August 10, 2012.

[43]         Section 170(b) of the FLA provides that an order for spousal support may include “any period of time before the date the application for the order is made”. The applicable section of the Divorce Act is section 17(1)(a).

[44]         A claim for retroactive spousal support requires consideration of why the support was not sought earlier, the conduct of the payor, the circumstances of the spouse and any hardship occasioned by a retroactive award (D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37). While D.B.S. addressed child support the analysis respecting retroactive spousal support is similar (Kerr v. Baranow, 2011 SCC 10). In Kerr the Supreme Court of Canada also noted at para. 208 that:

[208]    … there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support”: …

[45]         While the parties entered into mediation in 2011 and 2012 the evidence does not make clear that spousal support was at issue. Given the only clear claim for spousal support on the evidence before me is the filing of the notice of family claim I conclude that the respondent had notice of the claim as of August 10, 2012.

[46]         As a result of that claim the parties exchanged pleadings and financial information over the following months and sought an out of court resolution of their claims. Given those ongoing discussion it was reasonable for the claimant to not actively pursue an interim maintenance claim in chambers. There is also evidence that the respondent was dilatory in making financial disclosure as it was not until the hearing of this application that he produced copies of his recent tax returns.

[47]         After separation the claimant was in need of support. The evidence establishes that the claimant has be unable to obtain her own residence, whether rented or owned, but instead has relied on the charity of friends. She has also incurred debts in order to make ends meet.

[48]         As a result any retroactive order addresses her entitlement and need for support and is not a redistribution of capital.

[49]         I am satisfied that an order for retroactive support is appropriate however only to August 10, 2012 when the notice of family claim was filed. At that point the respondent was on notice and was obliged to plan his financial affairs accordingly. The lesser income of the claimant coupled with the standard of living of the parties, the long marriage, their roles in the marriage, the disadvantages suffered by the claimant from the marriage breakdown and her need to become self-sufficient and the fact the respondent remained in the mortgage free former matrimonial home all support such an order. In my opinion retroactive spousal support should be ordered from August 10, 2012. Taking into account the parties’ respective incomes from that date to the January 2016 the retroactive spousal support shall be calculated based on payments of $1,259 per month. The income and assets of the respondent do not indicate that such an order will impose a hardship on him.

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Vancouver denial of parenting time lawyers understand the heartbreak of a child being deprived of the love and guidance of two loving and caring parents after relationship breakdown. Lorne MacLean, QC was the winning counsel on Young v. Young, Canada’s leading case on the principle of a child being entitled to “maximum contact” with both of their parents. Mr. MacLean was also one of the first lawyers to advocate successfully for shared equal parenting. Vancouver parenting time denial cases now have powerful new rules to govern them thanks to new sections in our BC Family Law Act. Contact our Vancouver parenting time denial lawyers immediately as delay can impact the result of your case. You can call us toll free at 1-877-602-9900 to meet at any of our 4 offices across BC.

New Rules Govern Vancouver Denial Of Parenting Time

Vancouver Parenting Time Denial Lawyer, Lorne MacLean, Q.C.

In the past only the cumbersome and heavy handed contempt remedy was available for Vancouver denial of parenting time cases but it had a high threshold to obtain success and the procedure was expensive. The new sections of our Family Law Act are sections 61 and 62. Compensatory make up time can be ordered if the Vancouver parenting time denial is wrongful.

In the recent BC Supreme Court case of KR v JW, the court reviewed the law and established principles to be used in a Vancouver parenting time denial case. Mr. Justice Betton reviewed a number of cases on the issue of Vancouver denial of parenting time and then provided a very useful summary of what rules a court will apply to decide if there has been a Vancouver parenting time denial:

[22] There are relatively few decisions that have considered ss. 61 and 62 of the FLA in detail. The provisions have, however, been referred to a number of times.

[23] The central determination needed before any remedy pursuant to those provisions is available is that there be a “wrongful denial of parenting time”. Section 62(1)(a)-(e) provides a non-exhaustive list of when a denial is not wrongful. Clearly, there will be scenarios where concluding denials are wrongful is straightforward, leaving only the question of identifying the appropriate remedy. The court also has discretion not to impose any consequence or remedy even if a denial is found to be wrongful; that is to say, s. 61(2) uses permissive not obligatory language.

[24] Consistent with the best interests of children being the singular concern, s. 62(2) also allows for compensatory parenting time to be ordered even if a denial is not wrongful.

[56] Clearly the sections are intended to provide a mechanism less rigid and difficult to apply than contempt proceedings. This is consistent with the objective of the legislation of making the best interests of the children the only consideration. To that end, the standard of proof being that I be “satisfied” that there has been a wrongful denial is a significant change from contempt proceedings.

[57] Parenting time that has been included in an agreement or that has been ordered must be respected. If not appealed or varied, compliance cannot be viewed as optional. The time constraint in s. 61(1)(b) ensures some contemporaneity between the alleged denial and the remedy, thus serving as well to focus on the best interests of the children. Section 62 ensures reasonable denials are permitted, again consistent with the best interests of the children being the only consideration.

[58] In my view, the objective of the provisions is to give the court a broad discretion that can be adapted to each unique situation. It would be inconsistent with the broad objectives to limit the remedies to only discrete events of an express denial.

[59] A pattern of wrongful conduct that frustrates an agreement or order such that parenting time is not fully available is a wrongful denial. A parent need not say the word “no” to scheduled parenting time for them to communicate a denial nor must they physically prevent the parenting time from occurring for it to be a wrongful denial. The cumulative effect of less definitive words and actions may suffice.

[60] When a child is resisting the parenting time accorded a parent by the order or agreement, it is appropriate to view the origins of that resistance. A parent who encourages that resistance by words and/or actions can, in my view, be said to be denying parenting time and, depending on the circumstances, it may be a wrongful denial.

[61] In circumstances such as this case, an assessment of the parent’s response to that resistance can be critical. If the response is situationally appropriate but ultimately unsuccessful in overcoming the resistance, the parent should not be found to have wrongfully denied parenting time.

[62] In addition, it is my conclusion that a parent who elects not to challenge the other parent who wrongfully denies parenting time at that moment should not be deprived of seeking a remedy pursuant to these provisions. That is why s. 61 exists, and the timeline in it would be defeated if a different conclusion were to be reached. Acquiescence to a wrongful denial does not change the character of the act of the wrongful denial.

[63] Where, however, a parent agrees to forgo scheduled parenting time because of the resistance of the child, it may preclude a finding that the other parent has denied parenting time but the circumstances of such agreement must be reviewed carefully. The genesis of the resistance is again critical, as is the other parent’s response to that resistance. Acquiescence or even agreement alone should not end the analysis. The underlying circumstances must be examined to prevent defeating the utility of these sections in ensuring the best interests of children are served.

[64] I will add that I see no reason to restrict the availability of the provisions in the context of interim applications. Indeed, the time constraints placed in the provisions require they be available throughout the course of the litigation. Further, the harmful effects of wrongful denial can be significant and should be addressed at the earliest opportunity. Having said that, courts dealing with interim applications seeking remedies under s. 61 should proceed cautiously and with restraint guided by the particular circumstances.

[65] In summary, the three questions I pose above should not be considered in isolation. With that proviso, I would answer them as follows:

1. The sections are not limited to discreet events of wrongful denial. While available in such circumstances, they are also available to address more nuanced circumstances where cumulative effect of a pattern of conduct, including words or actions, results in a loss of parenting time.

2. Where a child is resistant to scheduled parenting time, the source of that resistance must be examined to determine if the parent has fostered it. Further, that parent’s response to the resistance must be examined to determine if it is situationally appropriate so as to avoid the result being characterized as a denial of parenting time.

3. Where a parent entitled to parenting time agrees or acquiesces to forgoing scheduled parenting time, the circumstances must again be reviewed to determine whether there was, in fact, a denial by the other parent. For example, a parent who agrees or otherwise does not compel the child or the other parent to accommodate the parenting time may have had little practical choice in the face of the actions or words of the other parent. The fact of an agreement or acquiescence alone does not absolve the other parent of potential responsibility for wrongful denial.

 

If you are involved in a Vancouver parenting time denial case call the highly experienced lawyers at MacLean Family Law. Vancouver’s top rated family law firm as recently found by top choice awards is MacLean Law. We have offices in Vancouver, Kelowna, Surrey and Fort St. John to assist you with any Vancouver parenting time denial cases.

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Lorne MacLean QC, Vancouver Step Parent Child Support Lawyer

Our Vancouver step parent child support and BC child support lawyers handle all types of natural and step parent child support cases. We have won key appeals where the respective duties of a natural parent and a step parent are considered and weighed. Our step parent support lawyers also look at cases where the relationship between a parent and a child is strained and in cases of adult children what is that child’s duty in a step parent child support case to help contribute to their education.

What Is A Step Parent’s Child Support Obligation If The Natural Parent Is Broke?

A recent BC Appeal court step parent child support case determined that a step parent who unilaterally terminated the relationship with his step son had to pay full guideline support for the child as the natural father earned too little to pay any child support at all. The case dealt with the respective obligations of a natural father and a step parent child support parent and at the very end of the decision talked about a child having a duty to try to contribute to at least their books and tuition.

(20) With respect to the obligation of a step-parent, Bracken J. was obviously satisfied that Mr. Anderson is unable to assist in Colby’s financial support. This being the case, the burden must fall on Mr. Arndt and Ms. Shaw. As stated in H.(U.V.) v. H.(M.W.) 2008 BCCA 177:

… At the other end of the spectrum, where the three (or more) parents’ Guidelines “contributions” together are needed to provide the children with a reasonable standard of living, then both the stepparent and the non-custodial parent(s) may well be required to pay full Guidelines amounts. Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has left it to the judgment of trial and chambers judges in the first instance to fashion orders that are “appropriate” under s. 5. At the same time, the Guidelines system is not thereby jettisoned in favour of a ‘wide open’ discretion. The inquiry must, like the Guidelines themselves, focus on the children and their needs. [At para. 41; emphasis added.]

(See also s. 147(4) and (5) of the Family Law Act and Sullivan v. Struck 2015 BCCA 521 at paras. 80-4.) I would not accede to Mr. Arndt’s argument on this point.

(21) Mr. Arndt’s primary complaint, however, seems to be that he has “no relationship” with Colby. He says he should therefore not be expected to support Colby – whom he describes as “delinquent” in pursuing an education and lacking any particular job objective. Clearly, Mr. Arndt finds this particularly irksome given that his income is, he says, much reduced from the $70,000 fixed by the order of August 2013.

What If A Step Parent And Child Have No Relationship- Does That Mean No Child Support?

The case law is clear that only in the most extreme of cases will an estrangement of child and step parent or natural parent mean no child support is payable.

[22] The issue of the disassociation between Mr. Arndt and Colby brings us to Farden, a decision of Master Joyce in chambers dated June 8, 1993. In that case, the Master stated that while the pursuit of education “can be sufficient cause” to render a child unable to withdraw from the parent’s charge or obtain the necessaries of life, that will not always be the case. In his analysis, that question required an examination of all the circumstances in each case, including:

(1) whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4) the ability of the child to contribute to his own support through part-time employment;

(5) the age of the child;

(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. [At para. 15.]

(23) The Master found the evidence in Farden insufficient to establish that the child was “pursuing, in a reasonable way, a course of studies which may lead to some appropriate career. He is proceeding with his further education at what I consider to be a leisurely pace.” The child had not shown he was unable to work part-time while pursuing his (part-time) course load and there was no evidence as to what efforts he had made to find employment. In the result, the Master concluded that “quite apart from the question of the lack of relationship between father and son, the evidence fails to establish that the son is at this time a ‘child of the marriage.’” (At para. 18; my emphasis.) The son’s “total unwillingness to attempt to reinstate any relationship” with his father was said to be an additional factor which the Master was entitled to take into account in dismissing the mother’s application for child support.

(24) The Master also quoted from Law v. Law (1986) 2 R.F.L. (3d) 458 (Ont. S.C.), where Fleury L.J.S.C. stated:

In the case at bar, Kimberley Ruth Law has reached the age of 22. She has not seen fit to contact her father to keep him appraised [sic] of her progress in university and no evidence was made available to the respondent until he unilaterally ceased making maintenance payments for her benefit when she turned 21 in 1985. … Kimberley has certainly withdrawn from the applicant’s charge as a result of her failure to maintain any contact with him. Although it is sufficient that she be in the custodial parent’s charge, I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered by the trial judge in determining whether it would be “fit and just” to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child’s neglect of his or her filial duties. [At 462-3; emphasis added.]

(25) Farden has not been interpreted by courts in this province or elsewhere as providing a set of iron-clad requirements that must be met by older children who propose to pursue education with financial assistance from their parents. In Darlington v. Darlington (1997) 32 R.F.L. (4th) 406, this court made it clear that there need not be evidence on all of the factors in order to establish that a child is a “child of the marriage” because she is pursuing an education. In Neufeld v. Neufeld 2005 BCCA 7, Levine J.A. for the Court stated that the factors listed in Farden “are not a set of minimum criteria all of which must be satisfied.” Rather, she said, they are factors to be considered, along with others. (At para 22.) Neither case concerned estranged children.

[26] In A.C. v. M.Z. 2010 ONSC 6473, Mr. Justice Pazaratz provided an extensive review on the law relating to estranged adult children, beginning at para. 107. He noted at para. 130 that Law v. Law was decided under the former Divorce Act, R.S.C. 1970, c. D-8, which listed “conduct of the parties” as a factor to be considered in setting child support under s. 11. This factor was not repeated in s. 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) or in the Federal Child Support Guidelines, SOR/97-175. Indeed, he observed, there were strong public policy reasons why “conduct” is generally not determinative of, or relevant to, spousal support; and those reasons also resonate with respect to child support. In his analysis:

We recognize that spousal support is intended to address financial realities and consequences, unrelated to post-separation attitudes and feelings. We no longer ask whether a needy spouse deserves to receive money. Why then do we invite inquiry as to whether a needy adult child deserves to receive money?

And if we are going to consider evidence of the current relationship between the adult child and the estranged parent, how much background information; how much context; how much unpleasantness and recrimination do we want to invite in an otherwise “no fault” system? Parent-child relationships are complex even with intact family units. Current problems and rifts always have antecedents, whether apparent or not.

In the case at bar, the Respondent does not want to pay support for the three oldest children primarily because none of them are on speaking terms with him. But none of the four children have been on speaking terms with him for about a decade. Is it the children’s fault in 2010? Was it the children’s fault in 2000? At what age; at what stage, did the onus shift to each child to assume responsibility for a parental relationship whose flaws were perhaps decades in the making? [At paras. 140-2; emphasis added.]

(27) The Court cited various other cases in which child estrangement was considered – Bradley v. Zaba (1996) 137 Sask. R. 295 (C.A.), Smith v. Smith (2010) 79 R.F.L. (6th) 166 (Sask. Q.B.), Wahl v. Wahl 2000 ABQB 10, Olszewski v. Willick 2009 SKCA 133, Knight v. Knight 2009 BCSC 1851, and Hrechka v. Andries (2003) 38 R.F.L. (5th) 246 (Man. Q.B.). In Rebenchuk v. Rebenchuk, 2007 MBCA 22, Chief Justice Scott observed:

Termination of the parent/child relationship is a particularly difficult issue. In my view, selfish or ungrateful children who reject the non-custodial parent without justification should not expect to be supported through their years of higher education. But this factor rarely stands alone as the sole ground for denying support unless the situation is “extremely grave” (Pepin v. Jung, [2003] O.J. No. 1779 (S.C.J.)(QL)). [At para. 56; emphasis added.] [28] In Athwal v. Athwal 2007 BCSC 221, the Court was dealing with a breakdown in the father-child relationship that had continued for over a decade. Mr. Justice Ralph ruled that the child was nevertheless a “child of the marriage” and observed:

What makes the present application to continue child support difficult to assess is the origin of deeply rooted and long-standing alienation of Ramonique from her father. It was the subject of extensive diagnosis and counselling when she was a young child, but the professional assistance and Ramonique’s maturing have not overcome the problem. While I recognize that, as a result, Mr. Athwal has remained removed from his daughter’s life for ten years, there is an absence of evidence that Ramonique’s continuing alienation from her father reflects a considered decision, as in the Marsland case, rather than the remains of a long-standing alienation which has not been overcome.

I have concluded that, in all the circumstances of this application, Ramonique remains a “child of the marriage” and despite the absence of a relationship between Mr. Athwal and Ramonique, Mr. Athwal has a continuing obligation to pay child support to his daughter. She has a continuing need for support; she has only recently reached the age of majority, her educational program appears to be sound and she is not self-supporting. [At paras. 52-3; emphasis added.]

[29] The Court in A.C. v. M.Z. also referred to a paper written by Mr. Justice David Corbett entitled Child Support for Estranged Adult Children in 2010, who reached the following conclusions:

(a) Contrary to certain recent literature, there has not been “growing judicial recognition” that the quality of the relationship should have a bearing on child support.

(b) Courts have been willing to impose a few specific responsibilities on adult support recipients, and may properly do so, but not conditions that include maintaining a social relationship with a parent.

(c) The statutory basis for taking the quality of the child-parent relationship into account is dubious.

(d) There is appellant authority permitting the court to place some weight on the parent-child relationship, but that authority is more ambiguous than trial and motions court decisions suggest.

(e) On the current state of the law, there seems to be a discretion to take this factor into account, though few courts do, and fewer have found it a significant factor in a support decision.

(f) The better view is that if conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent. [At para. 172; emphasis added.]

In my view, this summary provides a useful description of the current law concerning the estrangement of adult children from their parents.

(30) In any event, the facts of this case bear little resemblance to those in Farden. Here we have a child who was obviously having some difficulty in handling several academic courses at once but who has the intellectual capability to do well in them. He is now enrolled at the University of Victoria – presumably for a full-time course load. Fortunately, he is able to live with his mother while attending. There is no evidence that he “unilaterally terminated” his relationship with Mr. Arndt; rather, it appears Mr. Arndt purported to “disown” his stepsons in the course of a trivial dispute. No doubt the relationship between Colby and Mr. Arndt is complicated by the fact that Mr. Arndt is not Colby’s father but his stepfather. Mr. Arndt has persisted in maintaining that Colby’s father is working and earning money, but that has been found not to be the case. Mr. Arndt appears to resent the fact that his stepsons are supportive of their mother – a position that is hardly surprising. If Mr. Arndt were to consider Colby’s viewpoint, he might realize that he himself may have played a role in pushing Colby away. He, Mr. Arndt, is the adult in this relationship and should act accordingly.

(31) The unsatisfactory relationship is not an excuse for Mr. Arndt’s failure to pay child support; nor is it a reason why Colby should not be regarded as a child of the marriage. Many parents or step-parents have troubled relationships with their children, but by virtue of their youth, children still have to be supported, in whole or in part, in obtaining training or degrees that will allow them to become self-sufficient. The final ‘Farden factor’ may justify the cessation of support in rare cases, but this case does not begin to approach the egregious circumstances in which a cut-off of support would be justified.

What About A Child’s Duty To Contribute To Support Through Getting A Job?

(32) By the same token, it appears that, as the chambers judge observed, Colby has been pursuing his education at a “leisurely pace”. No reason was offered as to why this is, or why he has not obtained summer employment. At some point in the near- to mid-term, he should be expected to contribute at least to his fees and related educational expenses. At this point, however, he is in his first year of university and taking a full course load. Mr. Arndt has not shown that he is unable to succeed there, or that the young man’s present objectives are unrealistic.

(33) No error on the part of the chambers judge having been shown, I would dismiss the appeal.

If you are involved in a Vancouver Step Parent Child Support case call the highly rated lawyers at MacLean Family Law toll free on 1 877 602 9900. Vancouver’s top rated family law firm as recently found by top choice awards is MacLean Law. We have offices in Vancouver, Kelowna, Surrey and Fort St. John to assist you with any Step Parent Child Support cases.

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Our Vancouver child mobility lawyers deal with child relocation and child move away cases on a regular basis. The Vancouver child mobility lawyers at top rated MacLean Law know there are differences in the test for child relocation depending on whether the Divorce Act of the BC Family Law Act is used and that can be a trap for the unwary. Our top rated Vancouver family law and Vancouver child mobility lawyers deal with cases where the moving parent shares custody and where they are the primary residential parent. Our Vancouver child mobility lawyers know the existing child care arrangement has a huge impact on whether or not a Vancouver child mobility case will be successful. Call us at 1-877-602-9900 early on to prevent a poor outcome for your child.

Vancouver Child Mobility Lawyers, Spencer MacLean and Lorne MacLean, QC

What Law Does A Judge Apply on A Vancouver Child Mobility Case?

A key Vancouver child mobility lawyers decision of Todd v. Todd 2016 BCSC 243 provided a great summary of the law on the proper test for a child move away and child relocation case. The Todd decision reviewed the law and then made an order designed to minimize conflict between the parents for the benefit of the child.

What Was The Child Mobility Case About?

This is a family trial. The fundamental issue in this case is whether Deborah Graham, the mother, should be permitted to relocate from their present residence in Squamish, British Columbia to Ontario. She proposes that she and the parties’ daughter Coral will live with her parents in Brookline, Ontario while she attends Durham College and that she will find work in Ontario after graduation. The father, Scott Todd, opposes the move and proposes that both parties remain in Squamish or the Lower Mainland, that Ms. Graham attend school in British Columbia and that the parties continue a shared parenting arrangement.

What was the result in the Vancouver Child Mobility Dispute?

The mother was not allowed to move and the court put some very specific orders in place to reduce conflict concerning the child and what powers each parent had on a shared and equal parenting plan.

Legal Principles – Mobility

(74) This case has been commenced pursuant to the Divorce Act. In T.K. v. R.J.H.A., 2013 BCSC 2112 at para. 39 [T.K.], Mr. Justice Verhoeven concluded that there were inconsistencies between the provisions of the Family Law Act and the Divorce Act in relation to the issue of mobility and that it was appropriate to apply the Divorce Act with respect to mobility issues. This approach is consistent with the approach in Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at para. 20; and Hansen v. Mantei-Hansen, 2013 BCSC 876 at para. 96.

(75) Section 16(8)-(10) of the Divorce Act provides:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

(76) In T.K., Mr. Justice Verhoeven discussed the approach to be taken as follows at paras. 41-48:

(41) The leading authority on the question of whether a court should allow a relocation of the child’s residence is the Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27.

(42) Although Gordon involved an application to change the terms of an existing custody order, the principles set out in Gordon are also applicable to an initial custody determination, with such modifications as may be necessary: Hejzlar at para. 22.

(43) In Gordon, the principles, insofar as they are relevant here, were summarized by McLachlin J. at paras. 49-50 as follows:

2. …the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

…

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

(44) These factors are not exhaustive: Stav v. Stav, 2012 BCCA 154 at para. 127. A more comprehensive list of potential factors and relevant considerations is set out in S.B.C. v. F.A.C., 2013 BCSC 211 at paras. 357-362.

…

(46) In S.S.L. v. J.W.W., 2010 BCCA 55, the court held that in joint parenting situations where one or both parents’ needs (economic, educational or personal) are seen as requiring a change, the court’s task is to analyze the evidence in four possible scenarios, which are primary residence with a parent in the new or present location, or joint physical custody in the new or present location, without presuming that the current care-giving and residential arrangement is the preferred one. The status quo is not to be the default result. It must not be assumed that one parent cannot move. Similarly it is not appropriate to rely on any assumptions as to what the parents will actually do depending on the decision of the court: Stav at para. 130.

(47) Inevitably, the court must assess the resources available to each parent and the potential effect of those resources on each scenario, which may require an assessment of a parent’s emotional and economic prospects, because the children’s interests are necessarily intertwined with those of their parents: S.S.L. at para. 33; Stav at para. 88.

(48) In R.E.Q. v. G.J.K., 2012 BCCA 146, at para. 58, the court states that it is not clear how the principle of “great respect” for the views of the “custodial parent” should apply where both parents are custodial parents and are co-parenting. Subsequently in Stav at para. 143, the Court of Appeal stated that where there are two “custodial” parents, who have diametrically opposed perceptions as to the best interests of their own children, it is difficult to treat their views as other than neutral in the analysis.

Judge’s Know The Absence Of Conflict Is The Greatest Predictor Of A Healthy Child Post Separation

Offices of MacLean Law – Vancouver Child Mobility Lawyers

(123) In summary, I make the following orders:

a) An order for divorce granted to take effect 31 days from the date of this judgment;

b) Ms. Graham will not be at liberty to move with Coral to reside in Ontario;

c) The parties will have joint custody of Coral and will remain guardians of Coral;

d) The parties will share parenting time on an equal basis. The schedule for parenting time will be on a rotating 3-2-2-3-2-2 basis, or as agreed by the parties;

e) Both parties will exercise the parenting responsibilities set out in s. 41 of the Family Law Act;

f) The parent who has the care of Coral at the time will have the final say in any day-to-day decisions. In the event that the parties are unable to reach agreement with respect to matters such as education, extracurricular activities, religion or cultural involvement, the parties shall use the services of a parenting coordinator who shall have the authority set out in the Family Law Act and Regulations. The costs of the parenting coordinator are to be born in proportion to the incomes of the parties. The parties are at liberty to apply in the event that they cannot agree on the selection of the parenting coordinator;

g) Coral will have Facetime or telephone contact with the other parent at least every three days and Coral is free to contact the other parent whenever she wishes;

h) Facetime with Coral will not be videotaped or recorded;

i) The parties shall restrict their communications to parenting time arrangements and the general care of Coral and shall conduct all communications in a respectful manner;

j) Neither party shall speak about the other in negative or disparaging terms in the presence of Coral; ………

s) All copies of Ms. Graham’s journals and medical records in Mr. Todd’s possession will be destroyed;

t) Mr. Todd will not videotape or record Ms. Graham;

If you are involved in a Vancouver Child Mobility case call MacLean Law toll free on 1 877 602 9900. Vancouver’s top rated family law firm as recently found by top choice awards is MacLean Law, founded by Lorne MacLean, QC. We have offices in Vancouver, Kelowna, Surrey and Fort St. John to assist you with your Vancouver Child Mobility case.

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Clarity of Intention Counts in Parental Gift Excluded Property Disputes

Our parental gift excluded property lawyers warn that when parents want to help their married children with advances of money or other gifts they MUST make their intentions clear at the time of the advance or the transfer of property. Our BC parental gift excluded property lawyers also caution that parents MUST also be equally clear about whether the gift is joint to both spouses or only to one of the spouses.

When millions can be at stake, BC’s largest family law team is ready to help you and the fact we are repeat winners of Top Choice Award’s best Vancouver family law firm means you are in good hands.

Call us toll free at 1-877-602-9900 to meet with us at our Vancouver, Surrey, Kelowna, and Fort St John offices.

Lorne MacLean, QC the head of our parental gift excluded property lawyers, notes that- BC’s first Appeal court case deciding whether property was excluded property as an advance on inheritance to one spouse or equally divided as gifted monies to both to both spouses to pay off their mortgage- came down in CLEARLY in favour of looking at the intent of the parents at the time the money was first advanced.

First BC Appeal Decision on Parental Gift Excluded Property

In Cabezas v Maxim 2016 BCCA 82 the official Court website headnote states:

the Appellant appeals the trial judge’s conclusion that proceeds from the sale of the matrimonial home were not excluded property under the Family Law Act. The appellant’s parents made substantial payments to the mortgage on the home. The judge found that the money was intended to be a gift benefiting both parties, and that the appellant’s mother formed the intention to treat it as an advance on the appellant’s inheritance afterward. He concluded that the proceeds were not excluded property. The appellant submits the money was an inheritance and therefore excluded property under the Act.

Held: the appeal is dismissed. The mortgage payments were a gift, and not excluded property. The common law, which provides interpretive context to the Act, indicates that the relevant time for assessing intention is the time of the transfer.

The Intent at the Date Of Gift, Not Later, Matters

Here is what the Court of Appeal decided on what the correct time to determine whether a gift was joint or sole is:

Did the trial judge err in determining that the proceeds from the sale of the matrimonial home were not excluded property?

Statutory Framework

[26]         At the time of judgment, the pertinent parts of ss. 84 and 85 of the Family Law Act, which specify what property is to be divided between separated spouses, read as follows:

(1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:

(a) on the date the spouses separate,

(i)  property that is owned by at least one spouse, or

(ii)  a beneficial interest of at least one spouse in property;

(b) after separation, property

(i)  acquired by at least one spouse, or

(ii)  in which at least one spouse acquires a beneficial interest,

that is derived from the property referred to in paragraph (a) or from the disposition of that property.

…

Excluded property

85(1) The following is excluded from family property:

(a) property acquired by a spouse before the relationship between the spouses began;

(b) gifts or inheritances to a spouse;

…

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

[41]         In my view, the decision by Mrs. Maxim to treat the payments as an advance on Mr. Maxim’s inheritance does not, in and of itself, on these facts, nullify her earlier intention to make a gift. Pecore (the leading SCC decision) is clear that the relevant inquiry focuses on the time of the transfer. The evidence on that point is not in dispute. [42]         I would not accede to the first ground of appeal, and would uphold the decision to divide the proceeds from the sale of the matrimonial home equally.

MacLean Family Law Can Help Win a Parental Gift Excluded Property Case

Lorne MacLean, Q.C. parental gift excluded property lawyer

Our parental gift excluded property lawyers advise that the onus of proving excluded property is on the person alleging the property is excluded from being equally shared. To win on this parental gift excluded property onus you need to properly document the gift or inheritance or the value of property brought into a relationship. Failure to prove the property was gifted inherited otr brought into the marriage by one sopouse alone can be financially fatal and lead to equal division of the disputed property. Don’t be disappointed. Call us to find out what your rightsd are ideally before you receive the gift or inheritance and at the time you are entering into a new relationship so you don’t face aggravation years later if the relationship goes sideways.

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BC Presumption Of Advancement  On Life Support In Family Cases?

BC family property judges have increasingly come to reject the BC presumption of advancement as overriding the clear statutory regime of excluded property in BC related to property brought into a BC spousal relationsip or property gifted to or inherited soley by one spouse. Lorne MacLean, QC published a recent CBA family law article and just lectured to a packed house at the Okanagan Family Law and ADR subsection this weekend. MacLean argued the BC presumption of advancement is dead in BC at least in cases involving the BC Family Law Act. Millions of dollars can be impacted by the excluded property rules and the confusion involving  any BC presumption of advancement.

It pays to hire a top excluded property lawyer such as Lorne MacLean, QC. Call us toll free at 1-877-602-9900.

BC presumption of advancement lawyers of MacLean Law

BC Presumption of Advancement at Odds With Family Law Act Excluded Property Rules

The BC presumption of advancment is problematic and involves often looking at what was intended at the time property was placed jointly or wholly in the othe rspouse’s names. The BC presumption of advancment can do mischief in cases where unwitting spoues’s follow uninformed financial planners advice or do it for creditor protection which is so common arounfd the world.

Score 7:2 Against Presumption

MacLean noted the case score is 7:2 in favour of maintaining the exclusion when excluded property is later registered jointly or solely in th eother spouse’s name. MacLean feels the BC Court of Appeal will likely uphold the exclusion even where property is later registered partially or wholly in the other spouse’s name when it statrst to decide exclued property and.

New BC Court Of Appeal Case Says Presumption is of No Significance

In Cabezas v Maxim the BC Court of Appeal telegraphed the death of the BC presumption of advancement:

[43]         While not necessary for the purposes of resolving this ground of appeal, one additional point should be addressed for the purposes of clarity. I observe that at least on these facts, the trial judge erred in relying on the presumption of advancement as an alternative basis for finding that the mortgage payments made by Mr. Maxim’s parents were gifts.

[44]         As noted, the trial judge relied on Wiens as authority for the application of the presumption of advancement. However, the Supreme Court of Canada’s decision in Pecore, which implicitly overrules Weins, was not put before him. In Pecore, Rothstein J. for the Court held that the presumption of advancement no longer applies between parents and adult independent children. He explained the rationale for this conclusion as follows, focusing primarily on present social conditions relating to elderly parents and adult children:

First, given that a principal justification for the presumption of advancement is parental obligation to support their dependent children, it seems to me that the presumption should not apply in respect of independent adult children. As Heeney J. noted in McLear, at para. 36, parental support obligations under provincial and federal statutes normally end when the child is no longer considered by law to be a minor: see e.g. Family Law Act, s. 31. Indeed, not only do child support obligations end when a child is no longer dependent, but often the reverse is true: an obligation may be imposed on independent adult children to support their parents in accordance with need and ability to pay: see e.g. Family Law Act, s. 32. Second, I agree with Heeney J. that it is common nowadays for ageing parents to transfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs. There should therefore be a rebuttable presumption that the adult child is holding the property in trust for the ageing parent to facilitate the free and efficient management of that parent’s affairs.

[45]         In Zhu v. Li, 2009 BCCA 128, at paras. 51-53, Neilson J.A. further explained the rationale for abandoning such a legal presumption in both the matrimonial and familial context. At para. 51, she said:

First, there is considerable support for the view that the presumption of advancement has lost its force in the contemporary matrimonial context. The editors of Waters’ Law of Trusts describe its origins in the 18th century, rooted in the assumption that when a husband or father transfers an asset to his wife or child, his intention is to make a gift due to the donee’s financial dependence on him and the reasonable expectation that the donee would share in his estate. They observe that this premise has lost its persuasiveness in contemporary society, to the point that the presumption of advancement has been eliminated by express legislation in the majority of Canadian provinces and territories. While it has not been abolished in British Columbia, they say that legislation dealing with the division of matrimonial property has “reduced the presumption to no significance”: D.W.M. Waters, Q.C., Mark R. Gillen, & Lionel D. Smith, Waters’ Law of Trusts in Canada, 3d ed. (Toronto: Thomson Carswell, 2005) at 377-381.

[46]         It follows from Pecore and Zhu that the presumption of advancement is not applicable to the facts of this case, and I will not consider it further.

The rules are complex and excluded property rules require proper proof and documentary backup. Let us help you do things right to avoid a poor outcome. Call us at any of our 4 offices across BC in Fort St John, Kelowna, Surrey and Vancouver toll free at 1-877-602-9900.

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Child Custody Sexual Abuse And Expert Witness Misconduct

Our high conflict child custody sexual abuse allegation lawyers handle both sides of these explosive family law cases. Judges hearing allegations of child custody sexual abuse need to err on the side of caution and put protections in place when there is some basis to believe the allegations. But what mischief happens when experts get involved in a child custody sexual abuse case who have questionable credentials. Worse still what happens if they rely on discredited theories in a child custody and sexual abuse dispute?

More distressingly,  what happens if the child custody sexual abuse allegations are false and children and a parent have been denied maximum contact with the unfairly smeared parent? A recent BC Court of Appeal child custody sexual abuse case allowed an extraordinary extension of time to bring an appeal by a father whose reputation was destroyed by findings made in a family trial where an expert’s credentials are now being impugned years after the trial ended.

BC Appeal Court Allows Extension To File Appeal On Alleged Expert Fraud

In this week’s J.P. v. B.G., 2016 BCCA 91 decision extraordinary and explosive facts were presented by a father’s whose reputation was destroyed and whose children have been denied contact with him based on a finding he sexually abused his children in a child custody sexual abuse case.

Summary:

A father, B.G., unrepresented at trial, seeks an extension of time to appeal an order in a family case more than three years out of time. The trial judge found that B.G. sexually abused his children and these findings were incorporated as facts in a second civil trial where he was found to also have sexually abused his youngest child over a different time period. Held: Application granted. Although granting an extension of time in the face of a three-year delay is extraordinary, this case is extraordinary and the interests of justice overwhelmingly favour it. There is evidence that an expert tendered by the mother at trial to prove the abuse was a fraud. The “expert” not only may have lacked bona fide credentials and experience, but her opinion relied on a debunked and inadmissible scientific theory. This evidence permeates the judgment, including the sexual abuse findings. The evidence and findings were incorporated into the civil trial, which is properly under appeal, and relied on there to make additional findings that the father sexually abused another of his children. Disallowing the extension could result in the “expert’s” evidence standing in the family trial and challenged in the civil trial under appeal.

[29]         In my view, when one considers all of the factors, including whether there was a fraud on the court; that the evidence of Claire Reeves in the family trial is inextricably linked to the civil trial which is properly under appeal; the fact of B.G.’s destroyed reputation and the inability to see his children since the judgment; the weight of the factors and the ultimate issue of the “interests of justice” is overwhelmingly in favour of granting the extension of time to file the notice of appeal or notice of application for leave to appeal. If the latter, I would grant leave to appeal. The issue of final versus interim order will be left to the division, if it is necessary to resolve.

[30]         I would allow the application and grant the extension of time to file the notice of appeal or application for leave to appeal. If necessary, I would grant leave to appeal.

Our child custody and sexual abuse lawyers will provide expert legal advice on this explosivley charged issue.

Call us across Bc toll free 1-877-602-9900.

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New BC Appeal Court Sets Test For Varying Child Parenting Arrangements –

What should the test be for varying child parenting arrangements? A new BC Court of Appeal case has established the test under our new Family Law Act for varying child parenting arrangements. If the test for varying child parenting arrangements is too high children might suffer from an unhealthy parenting environment but if the test for varying child parenting arrangements is too low a disappointed party that disliked the original parenting arrangement result could come back to make a change every few weeks and mayhem for the children would result. Our top rated varying child parenting arrangements lawyers routinely seek and defend applications and trials for varying child parenting arrangements. Our team has set the law in this key area including Canada’s most famous child custody case Young v. Young. Contact us now to ensure the parenting arrangements are done right intitially or varied properly.

Varying child parenting arrangements lawyers Lorne MacLean,QC and Spencer MacLean

Must Be A Material Change Before Varying Child Parenting Arrangements

In the new BC Court of Appeal decision that establishes clearly the new test for varying child parenting arrangements the court was critical of the learned Chambers Judge for making a wholesale change in parenting arrangements where a similar application brought before by the mother afew months earlier was dismissed. The Court said the judge erred by failing to properly consider if there was any material change that justified varying child parenting arrangements.

What Did Williamson Say The Proper Test Is For A Section 47 Variation of Parenting Arrangements?

In the 2016 decision of Williamson v. Williamson, 2016 BCCA 87  the court explained what the test for varying child parenting arrangements should be. The official headnote for the case explained it was an appeal by a father of a huge change in parenting arrangements where the chambers judge felt serious alienation was occurring although the cause was not known:

Two children resided with each parent. The appellant father appeals an order of a chambers judge that provided that the four children participate in the Family Reflections Reunification Program (FRRP). The judge granted the respondent mother sole interim guardianship of the children; prevented the father from communicating with the children during the FRRP and after its completion until he had completed counselling offered by the program targeting his alienating behaviour; changed the parenting arrangements; and ordered he pay the costs of the FRRP. The judge found that there was “serious alienation” occurring, but did not decide which parent was responsible for it. An identical application had been dismissed by a different judge a few months earlier.

Held: appeal allowed. The chambers judge erred in hearing the application without finding a material change as required under s. 47 of the Family Law Act. Further, the judge should not have made such a drastic order without proper expert evidence to support a finding of alienation on the part of the father, and without a finding that participation in the FRRP was in the best interests of the children. The Court noted there has been criticism about this program due to the lack of peer review, as well as the qualifications of Dr. Kathleen Reay who runs the program.

The BC Court of Appeal then went on to establish the test for what must be proven before an order varying child parenting arrangements should be made.

Material Change in Circumstances

[29]        In my view, the chambers judge erred in hearing the mother’s application without first finding there was a material change in circumstances. He did not consider the provision in the Family Law Act dealing with varying an order respecting parenting arrangements. Section 47 of the FLA reads as follows:

47  On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

[30]        While this provision differs from s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and does not use the language of a “material change”, this Court has interpreted the equivalent provision in s. 20 of the Family Relations Act, R.S.B.C. 1996, C. 128, which also did not use “material change” language, as requiring a material change in circumstances. This Court held that the two-step test from the Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27 applies despite the differences in the statutory language between s. 17(5) of the Divorce Act and s. 20 of the FRA: Boychuck v. Singleton, 2008 BCCA 355 at para. 14; M. v. M., 2012 BCCA 324 at paras. 27-29.

[31]        Although this Court has yet to consider s. 47 of the FLA, the Supreme Court has consistently interpreted this provision as requiring a material change in circumstances: see for example, Gilmour v. Herrick, 2013 BCSC 1591 at para. 13; Bradley v. Bradley, 2015 BCSC 1587 at paras. 21-23; and, J.D.C. v. K.L.M.F.C., 2014 BCSC 2182 at paras. 261-262. Given the reasoning of this Court in Boychuck and M. v. M, and the similarities between s. 47 of the FLA and s. 20 of the FRA, I conclude that a material change in circumstances is required under s. 47 of the FLA.

[32]        The first step in the analysis set out in Gordon v. Goertz is to “determine whether there has been a material change in circumstances since the making of the prior order”: Boychuck at para. 14. The Court in Gordon explained what is necessary to establish a material change in circumstances:

[11]      The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued….

[12]      What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way …The question is whether the previous order might have been different had the circumstances now existing prevailed earlier…Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.

[Emphasis in original.]

[33]        At para. 13, the Court summarized what the applicant must establish before proceeding on the merits of the application:

[13]      It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[34]        Absent a material change in the needs or circumstances of the child, the inquiry can go no further. It is only after this threshold is met that the judge on the new application can embark on a fresh inquiry into the best interest of the children.

Get Help From The Top Lawyers At MacLean Law

When you have a crucial varying child parenting arrangements dispute and you want guidance and top flight legal services speak with our founder Lorne MacLean,QC.

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Lorne MacLean, QC set the law on what a review of spousal support is in Canada in the leading case of Leskun v. Leskun of our Supreme Court of Canada. There is a significant difference in the onus an applicant faces when a review of spousal support is sought as compared to a variation of spousal support. As high net worth spousal support lawyers, we use the review of spousal support as a tool to help us settle cases and leave the troublesome issues of self sufficiency and the duration and amount of support to be decided at a later date. Contact us today to ensure the right test  is negotiated when trying to settle your spousal support case.

Lorne MacLean QC and Spencer MacLean review of spousal support lawyers

Review of Spousal Support A Key Tool to Settle Cases

While the Supreme Court of Canada said spousal support reviews should be rarely used, fortunately, courts across Canada have ignored this strict regime and continued to use the very useful tool of review of spousal support. What is a review of spousal support? A new BC Court of Appeal case explains it.

New BC Appeal Decision Contrasts A Review From a Variation Application

In the 2016 BC Court of Appeal  decision of Toth v. Toth, a very tidy summary by the Court was delivered that explains in simple terms how a review of spousal support works compared to the higher threshold needed to change a spousal support order:

Summary:

The appellant appeals the dismissal of her application for a review of an order for spousal support. Appeal dismissed. The parties entered a final separation agreement that was substantially replicated in a consent order in 2009. The chambers judge made no error in finding that, properly interpreted, the agreement and order did not provide for a review of support under s. 15.2 of the Divorce Act. The appellant must instead apply for a variation of support under s. 17(4.1).

[11]        The review of the spousal support order sought by the appellant is distinct from a variation of spousal support under s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). Before the court may vary an order for spousal support under that provision, the applicant must establish that there has been a material change “in the condition, means, needs or other circumstances of either former spouse” since the last order for support was made. By contrast, the right to a review of spousal support by the court emanates from a term in an earlier agreement or order that permits a party to seek a change in support without having to establish a material change in circumstances. Such a review takes place under s. 15.2 of the Divorce Act and so permits a fresh look at all factors relevant to support: Jordan v. Jordan, 2011 BCCA 518 at paras. 28-34, Scott v. Scott, 2008 BCCA 457 at para. 24.

[12]        The principles governing review orders were summarized as follows by the Supreme Court in Leskun at paras. 36-39. Such orders have a “useful but very limited role” in cases in which “genuine and material uncertainty” at the time of the original order or agreement indicates that the economic circumstances of one or both parties are not yet stable and further changes are anticipated. In such cases, a term permitting the parties to return to court for a review of spousal support may be justified. Courts should exercise caution, however, in making such orders, as a permanent resolution of entitlement to support is preferable. If a provision for review is made, it should clearly and narrowly identify the issue for review to avoid full re-argument by the parties.

Our highly rated senior family law lawyers headed by Lorne MacLean, QC can assist you in these high stakes review of spousal support cases. Call us across BC 1-877-602-9900.

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New BC Appeal Case Enforces Gatekeeper Role in Family Law Expert Evidence

In a key 2016 case involving disputed family law expert evidence, the BC Court of Appeal has sent a stern message to family law lawyers and their clients that they will enforce proper rules for accepting family law expert evidence in all family law cases. Supreme Court of Canada and BC Court of Appeal lawyer Lorne MacLean, QC welcomes this new case. Challenging expert credentials and theories is critical to ensure justice is done in a family law case. Call Lorne MacLean, QC immediately if you have a family law expert evidence dispute at 604-602-9000. We act throughtout Bc and in Calgary, Alberta.

Lorne MacLean,QC – family law expert evidence lawyer

In family cases there has been a tendency to let too much evidence in that would not strictly be permitted in a normal civil case. The Supreme Court of Canada has made it very clear the court serves a gatekeeper function to ensure only proper family law expert evidence is admitted. Family cases need to be decided fairly and if an expert is proferred as a witness to give expert opinion evidence it is the Judge’s role to act as a gatekeeper to ensure only proper family law expert evidence is admitted into the record.

In this week’s Williamson v Williamson decision the court rejected a Trial judge’s decision to vary parenting arrangements and implement a draconian family unification plan based on inappropriate expert evidence that did not meet the test for admissibility.

Proper Rules For Family Law Expert Evidence

Here is what our Bc Court of Appeal said was what went wrong and what is needed to ensure only proper family law expert evidence is admitted in a BC family law case:

Expert Evidence

[47]        Alienation is a serious allegation. In this case, its existence and its root cause were hotly disputed by the parties. Further, as described above, there is a range of mechanisms available to a court to address alienation. Some of these responses could have a long term impact on the child involved. Therefore, in a case such as this, alienation should be proved. Proposed responses should be supported with admissible expert evidence. In determining whether the particular evidence is admissible a court must follow the steps outlined in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22-23. First, a court must examine the threshold admissibility of such evidence in accordance with the well-established factors in R. v. Mohan, [1994] 2 S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). Then, if the evidence meets the threshold requirements of admissibility, the court must exercise its gatekeeper function and balance the potential risks and benefits of admitting the evidence.

[48]        Proof of such a serious allegation requires proper expert evidence to support a finding of alienation on the part of either party and to support that the FRRP was in the best interests of the children. The judge appeared to rely on the report of Mr. Finlay without considering his qualifications, that is, whether he was a properly qualified expert; or the necessity of his assessment given that Dr. Elterman, the court appointed expert, had already been ordered by Arnold-Bailey J. to update his s. 211 report.

[49]        Dr. Reay’s affidavit simply describes her program in generic terms and elaborates on its apparent effectiveness in certain circumstances. It did not appear to have been proffered as expert evidence. I note that in some of the case authorities there has been criticism of the FRRP, such as the fact the deconditioning program appears to be a fairly recent program in Canada and it has not been independently peer reviewed. As well, there have been questions about the qualifications of Dr. Reay: see Luo v. Le, 2016 ONSC 202 at paras. 29-33, 42, and the cases cited therein; D.S.W. v. D.A.W., 2014 BCSC 514 at paras. 31-32. However, these issues are properly addressed by the trial courts when the issue arises.

Family law expert evidence cases are tricky and it takes a skilled lawyer to dissect the report to ensure the expert is both qualified to testify at all  and to ensure their report passes muster as being valid and fair. Call us today toll free at 1-877-602-9900.

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Our child access child contact lawyers handle hundreds of child parenting time, child parenting responsibilities and child access and child contact cases. Our child access child contact lawyers act for primary residential parents, shared parenting spouses and parents seeking child access and child contact. BC guardians get parenting time but BC non-guardian parents get child access- also know as child contact.

What Is BC Child Access and BC Child Contact? 

Our child access child contact lawyers advise that a parent who is not a guardian does not have parenting responsibilities or parenting time but can have child contact under the Family Law Act or child access under the Divorce Act. We are multiple winners of Vancouver’s Best Family Law Firm as determined by Top Choice Awards so you can meet with us with full confidence that we will accurately assess your case and prepare a powerful argument to maximize your chances of success.

Lorne MacLean, QC founder MacLean Law child access child contact lawyers

Child access disputes can involve situations where conditions such as not smoking in the presence of the child, abstaining from using alcohol, staying within a defined leaving geographic location,  taking parenting courses, or even supervision during access may be sought by the guardian as a term of  the child contact in cases that our child access child contact lawyers are handling.

Highly respected Lorne N. MacLean, QC, our founder, notes that in the recent BC Supreme Court decision of Fawcett v Read  the issue of respect and deference for the wishes of the child’s guardian are now a factor to be considered together with the bests interests test set out in section 37 of the Family Law Act.

Guardian’s Wishes Require Respect

In this family matter, Ms. Read appeals an interim order of a Master which awarded Mr. Fawcett, a former boyfriend, contact with Ms. Read’s nine-year-old daughter, A.

 

[16]         I do of course agree that only the best interests of the child, A., may be considered in determining whether and how much contact should be afforded. But that analysis should be a nuanced and contextual consideration.

[17]         Section 59 reads as follows:

(1)        On application, a court may make an order respecting contact with a child, including describing the terms and form of contact:

(2)        A court may grant contact to any person who is not a guardian, including, without limiting the meaning of “person” in any other provision of this Act or a regulation made under it, to a parent or grandparent.

(3)        The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4)        An access order referred to in section 54.2 (2.1) or (3) of the Child,Family and Community Service Act is deemed  for the purposes of this Act, to be an order made under subsection (1) of this section for contact with a child.

[18]         The claimant bears the onus of establishing that contact with him is in the best interests of the child: Kalafchi v. Yao, 2015 BCSC 1152 at para. 26 [Kalafchi SC], aff’d 2015 BCCA 524.

[19]         Section 59 does not set out specific criteria on which an order is to be made. Therefore, an order under  s. 59 is subject to the general “best interests” factors set out in Part 4 of the FLA, and the analysis which must be undertaken should look at all the circumstances relevant to the child.

[20]         The list of factors set out in s. 37(2) of the FLA provides a basis for analyzing the best interests of A.: Hansen v. Mantei-Hansen, 2013 BCSC 876 at paras. 95, 98. However, this list is not exhaustive:  Pozzobon v. Pozzobon, 2013 BCSC 1226 at para. 30. 

[21]         The wording of  s. 37(2) makes it clear that the list of enumerated factors is not exhaustive:

37(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 . . . 

[emphasis added]

[22]          I find that in addition to the factors enumerated at s. 37(2), Part 4 of the FLA – Care of and Time with Children, which contains ss. 37 to 80, also contains other provisions that are relevant for consideration in the circumstances of this case.

[23]         Specifically, s. 41, which addresses parental responsibilities, sets out a number of responsibilities with respect to a child, which must be exercised in the best interests of the child, as per s. 43.

[24]         Section 40(1) dictates that “only a guardian may have parental responsibilities” and that “each child’s guardian may exercise all parental responsibilities with respect to the child” unless, as per s. 40(2), there is an agreement or an order that allocates parental responsibilities differently. In this case, the respondent is the only guardian of A., and there are no agreements or orders in place that have altered her parental responsibilities. As such, the respondent may, as per s. 40(2) “exercise all parental responsibilities with respect to the child”. This of course includes the parental responsibilities set out in s. 41, which follows:

41. For the purposes of this Part, parental responsibilities with respect to a child are as follows:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i)   starting, defending, compromising or settling any proceeding relating to the child, and

(ii)   identifying, advancing and protecting the child’s legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child’s development.

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Supervised Child Access and Contact

Lorne MacLean, QC has successfully guided his clients in supervised child access and contact cases for over 34 years.  He knows that supervised child access is artificial and courts must be careful not to weaken or destroy a parent child bond through this intrusive form of child access regime. Protecting a child always trumps parents who feel they have rights. Remember that in supervised child access cases the child has the rights to see a parent if it is in their best interests while parents have obligations to be the best parent they can be. Conditional and supervised child access cases are difficult and often expert evidence is required to get to the bottom of real or imagined parenting capacity concerns. Contact Vancouver’s top rated family law firm to get the help you need to sort out this difficult cases.

Lorne MacLean, QC and Audra Bayer, MacLean Law supervised child access dispute lawyers

Best Interests Only Factor

A recent case of JAF v JJF  restates the principles of focusing only on the best interests of the child and on the principle of maximum contact which Lorne N MacLean QC articulated successfully for his  winning client in Canada’s most famous child custody case of Young v. Young.

Maximum Contact With Both Parents is Child’s Right

Here is a great summary for parent’s involved in a supervised child access dispute:

[109]     A concise summary of the applicable legal principles is set out in the decision of Butler J. in G.G. v. M.A., 2014 BCSC 1023, aff’d, 2015 BCCA 383 at paras. 77-78:

77     …In arriving at my decision, I am guided by the provisions of s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.). In J.S. v. G.J.S., 2005 BCSC 1373 at para. 39, Rice J. nicely summarized the relevant provisions of that section:

Section 16 of the Divorce Act, expressly mandates that the best interests of the child is the only consideration in a custody or access dispute. The court must determine “best interests” by assessing “the condition, means, needs and other circumstances of the child” (s. 16(8)). Parliament singled out only two factors of special importance to guide the court in its assessment: First, the court is forbidden to consider the past conduct of a parent unless that conduct is relevant to the person’s parenting ability (s. 16(9)). Second, the court must ensure that a child has as much contact with each parent as is consistent with that child’s best interests. In applying this principle of maximum contact, the court must consider the willingness of the person seeking custody to facilitate such contact (s. 16(10)).

78     Section 37(2) of the Family Law Act, S.B.C. 2011, c. 25 (“FLA”), lists factors to be considered when a court is deciding what is in the best interests of a child. As noted by Humphries J. in Hansen v. Mantei-Hansen, 2013 BCSC 876 at para. 61, the considerations listed are those that can be gleaned from a perusal of case law under the Divorce Act and the FRA.

Supervised Child Access Not A Viable Long Term Solution

Our supervised child access lawyers know the test for supervised access balances the need to protect a child from harm with the need for a child to maintain a warm and strong bond with both parents.

[110]     Supervised access “is just one small step away from a complete termination of the parent-child relationship”: V.S.J. v. L.J.G., [2004] O.J. No. 2238, at para. 1. An order for indefinite supervised access, providing neither transition to unsupervised access nor a fixed review date should be made in rare circumstances: F.K. v. M.K. 2010 BCSC 563, at para. 150, citing Merkand v. Merkand, [2006] O.J. No. 528 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 117.

Remember parents are forever. Call our BC supervised child access lawyers immediately if you have a dispute involving your children at 1-877-602-9900.

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Lorne N. MacLean, QC, heads our BC beneficial interest in a discretionary trust and family trust property division legal department across BC. MacLean and his team of top rated family property division lawyers (selected once again as Vancouver’s Best Family Law firm), have been closely watching the new Family Law Act family trust property division and beneficial interest in a discretionary trust interest valuation case law develop under the new Family Law Act.

Lorne MacLean, QC and Audra Bayer – MacLean Law beneficial interest in a discretionary trust division lawyers

Division Of Discretionary Trust Interests Is Complex And It Pays To Hire Someone Experienced

One thing all BC family lawyers agree on is that, the division of a spouse’s family trust interest and of their beneficial interest in a discretionary trust plus dealing with the valuation of their trust interest coupled with a balancing of the rights of competing beneficiaries will be complicated. Ensure right from the start that your lawyer has experience in this area particularly when the money stakes are routinely huge. You can rest assured Lorne N. MacLean, QC has the experience you need when millions of dollars are at stake.

Our Team Has The Experience Dealing With A Beneficial Interest In A Discretionary Trust

Lorne MacLean, QC successfully obtained a declaration that a contingent interest in a $15,000,000 family trust was a family asset under our old family Relations Act in the case of Fulton v. Gunn 2008 BCSC 1159. MacLean has also educated BC lawyers and written articles on family trust division and valuation issues related to a contingent interest under a discretionary trust. He knows the arguments that can be made on both sides of this complex issue.

Some Say A Beneficial Interest In A Discretionary Trust Is Not Even Property!

Some trust lawyers argue that a beneficial interest in a discretionary trust is not “family property” because no one would buy it and if it is property it is worthless as no buyer would pay to buy a beneficial trust interest in property they could not compel be paid out to them.

Sections 84 and 85 of our Family Law Act set out the scheme for how the gain in value of a spouse’s interest in a discretionary trust is to be shared:

85  (1) The following is excluded from family property:

(f) a spouse’s beneficial interest in property held in a discretionary trust

(i)   to which the spouse did not contribute, and

(ii)   that is settled by a person other than the spouse;

But section 84 (2) says the gain on a spouse’s beneficial interest in property held in a discretionary trust is shared:

(g) the amount by which the value of excluded property has increased since the later of the date

(i)   the relationship between the spouses began, or

(ii)   the excluded property was acquired.

Saskatchewan’s Highest Court Provides Guidance

The recent Saskatchewan Court of Appeal decision in Grosse v Grosse, 2015 SKCA 68 (CanLII) applying similar language to our new Act found a beneficial interest in a discretionary trust to be family property and held that:

[24]   Subparagraph (a) refers to, among other things, “an interest in a trust”. A spouse may have an interest in a trust as either a beneficiary or a trustee. Legal title to trust property rests with the trustee, while the objects of the trust (i.e., its beneficiaries) hold beneficial ownership of its property. Key to determining whether a spouse has an “interest” in a trust is the trust agreement. That agreement should set out what constitutes the corpus of the trust, who the beneficiaries are, how the income and capital of the trust is to be distributed, who will administer the trust (the trustee(s)), what powers the trustee will have, how the trust can be dissolved, and what will happen should the trust fail. A spouse’s “interest in a trust”, may be contingent or vested. Pursuant to subparagraph (a), it is the spouse’s “interest in a trust”, not the property, income or corpus of the trust, that constitutes family property and must be valued for division purposes.”

Saskatchewan Court of Appeal Values Beneficial Interest in Trust Based on Asset Value Less Disposition Costs

The Saskatchewan Court of Appeal relied on several BC cases dealing with discretionary trusts and held that the “if and when” order made by the trial judge was inherently unfair and defeated the equitable division of family property contemplated by the Act. The value of the trust was found to be the fair market value of its assets as of the date of adjudication (after taking into account the costs of distribution and any income tax liability) and it was ordered to be divided equally between the parties. However, in this case the husband was the trustee which made the case much easier to deal with than a trust created by a third party.

What Will BC Do With A Beneficial Interest In a Discretionary Trust?

To date no BC case has dealt with the thorny issue of family trust property division under the new FLA. Our firm looks forward to helping establish the law in BC on family trust property division and valuations of spouse’s interests in discretionary trusts. 

In Stober v. Stober 2015 BCSC 2505 the parties argued over whether an expert could be appointed to deal with a beneficial interest in a discretionary trust on a case headed for trial in BC and  their lawyers argued different courts have applied different approaches and that no beneficial interest in a discretionary trust decision has occurred yet in BC.

[2]             One of the issues in the case is whether the parties’ respective interests in a family trust known as the Mark Stober Family Trust (the “Trust”) are family property within the meaning of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. The claimant says yes and the respondent says no.

[3]             By way of this application, the respondent seeks an order for a joint valuation of the parties’ respective interests in the Trust. He submits that if the court determines that the parties’ interests in the Trust are family property, the court will need evidence as to the value of those interests. …

[30]         The respondent submits that fair market value is the starting point for determining the value of family property as set out in s. 87 of the FLA. He makes the point that the family property in issue here, assuming the court finds it to in fact be family property, is the parties’ beneficial interest in the Trust, and not the Trust property itself.

[31]         The respondent submits …Mr. Spence’s opinion will inform and assist the trial judge in his or her assessment and that it will be up to the trial judge to accept or reject that opinion and, if accepted, to determine the weight to be attached to it.

[32]         The claimant notes, again, that there is no existing judicial consideration of the relevant provisions of the FLA and correspondingly, no established approach or methodology to valuing beneficial interests in discretionary trusts. She cites a number of cases from other jurisdictions where the courts have taken different approaches. She also notes that there has been considerable academic commentary and debate on this issue and she refers, as an example, to Freedman and White, Financial Principles of Family Law, where the authors identify a number of factors that may be relevant to the valuation of an interest in a discretionary trust as follows:

1. a)     the circumstances of the owner-spouse, the trust, and the other beneficiaries;
2. b)     the number and ages of the various beneficiaries;
3. c)     the obligations of the trustee(s) under the terms of the trust;
4. d)     the owner-spouse’s overall estate planning;
5. e)     the trustee’s possible plans for the underlying assets of the trust;
6. f)       the obligation of the trustee(s) to maintain an even hand when dealing with all beneficiaries;
7. g)     the fair market value of the underlying assets of the trust; and
8. h)     the expectations and legal rights of the other beneficiaries (at 28-13-28-14).

[33]         She says that all of these factors are ones that the trial judge will have to consider and determine based on evidence adduced at trial and that, as such, it is impossible to provide the expert with a set of factual assumptions that will enable him to produce a useful or meaningful report. [34]         The claimant submits further that the valuation of family property under the FLA involves issues of statutory interpretation and, with respect to the parties’ beneficial interests in the Trust, the application of principles of trust law. She submits that the valuator cannot render the opinion sought without straying improperly into issues of law…. [35]         One other key point made by the claimant is that s. 87 of the FLA does not mandate that fair market value must be the value used when valuing family property. Rather, it simply provides that the value of family property must be based on fair market value. She submits that it will be open to the trial judge to adopt a different approach to value which, in fact, is quite likely given the absence of a market for a beneficial interest in a wholly discretionary trust. For that reason, she submits that an opinion on the fair market value of the beneficial interests will be of no assistance.

[36]         In coming to a decision on the application, I start with the observation that valuation evidence is regularly accepted in this and other courts as proper expert opinion evidence. The rationale underlying the acceptance of such evidence is that the principles of valuation and the methodologies employed are generally beyond the normal experience and knowledge of trial judges.

[37]         In many cases in which such evidence is adduced, for example business disputes or personal injury claims, the governing principles are well known and the valuation occurs within a well-established context. For example, the experts will apply Generally Accepted Accounting Principles and statutory discount rates.

[38]         The challenge in this case, as submitted by the claimant, is that the principles and methodologies are not well-known or established. There is no clear jurisprudence that guides the court or the expert in approaching the issue of the value of the interest in issue. It is not clear to me that the concept of fair market value, which is the central question to be posed to Mr. Spence, even has any meaning or application to beneficial interests in a discretionary trust, again, given the likely absence of any market for such interests. Frankly, that may, in fact, be Mr. Spence’s response when the question is posed to him. We do not know.

[39]         However, what we do know is that while s. 87 of the FLA leaves open the possibility that a value other than fair market value will be used when ascertaining and dividing family property, it nonetheless dictates that the value must be based on fair market value. Thus, when valuing family property for the purposes of division, the court must start with the fair market value and then go from there. In order to do so, the court requires evidence of fair market value or, as the case may be, evidence that there is no fair market value for a particular type of property.

[40]         In my view, that evidence is properly obtained through the expert opinion sought by the respondent.

[45]         I would add that, not surprisingly, the majority of cases cited by the parties involve circumstances in which an expert report was prepared and then the court made a determination of admissibility. That is because, except in very rare cases, it is necessary for the trial judge to actually see the report and accompanying opinion in order to determine if it meets the threshold test for admissibility.

Conclusion

[46]         In summary, I find that it is appropriate that Mr. Spence be asked for his expert opinion as to the fair market value of the beneficial interests of Kimberly Stober and Mark Stober in the Trust property of the Mark Stober Family Trust. The parties will share equally in the cost of obtaining the opinion without prejudice to their right to argue at a later date that the costs were unnecessary or should be allocated differently.

We would be honoured to help you and to further the law in British Columbia on how to value and divide a spouse’s beneficial interest in a discretionary trust just as we helped set the law on child custody and support in the leading cases of Young and Leskun in the Supreme Court of Canada. Call us across BC at 1-877-602-9900 today.

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The BC spousal support variation team at MacLean Law appreciates the very concise summary presented by Mr. Justice Verhoeven in Lamont v. Johnson, 2016 BCSC 366 concerning the test that must be met for a successful BC spousal support variation application. Our lawyers both apply for and oppose BC spousal support variation applications from all of our 4 offices located across BC in Surrey, Vancouver, Fort St John and Kelowna.

Experience Counts In A BC Spousal Support Variation Case

Lorne N MacLean,QC BC spousal support variation lawyer

It is important that a spouse who is seeking or defending a BC spousal support variation case understands the rules that re to be applied. Our highly experienced lawyers can provide key guidance in the area related to BC spousal support variation and our team can meet with you and explore your options on an immediate basis.

 BC Spousal Support Variation Law Summarized

BC spousal support variation cases apply a test that has been refined over the years by the Supreme Court of Canada and our highest court in BC the BC Court of Appeal. Mr. Justice Verhoeven summarized the extracts of the law and then summarized the law to succeed on a BC spousal support variation in plain language after going through it:

 

[13]         At this juncture there is no meaningful distinction between entitlement and quantum. Clearly, an application to vary spousal support can result in termination of spousal support.  No authority is needed for that proposition, but a few examples where that has occurred are: Eichen v. Eichen, 2012 BCCA 32; Price v. Price, 2010 BCCA 452; Jens v. Jens, 2008 BCCA 392; Aspe v. Aspe, 2010 BCCA 508; Code v. Code, [1998] B.C.J. No. 2456 (QL). [14]         Voith J. discussed the relevant principles to be applied in an application to vary spousal support in Bradley v. Bradley, 2012 BCSC 2191, as follows:

[14]         A number of legal propositions are also relevant to the instant application. The court is to proceed on the basis that the original order was correct; Haigh v. Haigh (1997), 41 B.C.L.R. (3d) 139 (C.A.). As stated above, Mr. Bradley does not contest the validity of the Consent Order.

[15]         The onus to establish that a material change has occurred rests with Mr. Bradley. This requires Mr. Bradley to show not only that a change occurred, but also that the change warrants judicial intervention; Walters v. Walters, 2011 BCCA 331 at paras. 48-49; Oakley v. Oakley (1985), 48 R.F.L. (2d) 307 at 313 (B.C.C.A.).

[16]         Some of these principles were summarized and further developed in Murphy v. Murphy, 2000 BCSC 974, where Martinson J. said:

[…]

[18]      The Supreme Court of Canada has said that the change must be a material change in circumstances, meaning a change that if known at the time of the original order, would likely have resulted in different terms: G. (L.) v. B. (G.), [19995] 3 S.C.R. 370. If the matter was known at the time of the order sought to be varied, it cannot be used as a basis for variation.

[19]      The British Columbia Court of Appeal has said that a court will vary a support order only where it finds a change that is substantial, unforeseen and of a continuing nature:  T. (T.L.A.) v. T. (W.W.), 26 B.C.L.R. (3d) 319 at 33. The Supreme Court of Canada has more recently said that the change cannot be trivial or insignificant: Hickey v. Hickey, [1999] S.C.J. 9 at para. 20. A change must therefore be one that is significant, unforeseen, and of a continuing nature. Otherwise, parties cannot properly organize their financial affairs and plan for the future.

[17]         Recently in L.M.P. v. L.S., 2011 SCC 64, Abella and Rothstein J.J., for the majority, reasserted some of these propositions and said:

[29]      In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order. [30]      In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), [1995] 3 S.C.R. 370. Like the order at issue in this case, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporated provisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act, the predecessor provision to s. 17(4.1). [31]      Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.

[32]      That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.

[33]      The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement. [34       The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.

[35]      In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40, at para. 49). Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).

[18]         Finally, I recognize that in Walters the court emphasized the importance, in a variation application, of a judge considering both the objectives of s.17(7) and the parties’ means, needs, and other circumstances under s. 17(4.1) of the Divorce Act.

Here Is A Great Checklist For A BC Spousal Support Variation

Here is a handy checklist for a BC spousal support variation application:

[15]         In summary, the principles to be applied on an application to vary spousal support are as follows:

1. The court is to proceed on the basis that the original order was correct. It must be presumed that the prior support order met the objectives set out in s. 15.2(6) of the DA. Appropriate deference is required to the terms of the prior order, whether or not that order incorporates an agreement;

2. The court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order;

3. The applicant has the onus to establish that a material change in circumstances has occurred and that the change warrants judicial intervention;

4. A material change in circumstances means a change that if known at the time of the original order would likely have resulted in different terms;

5. If the matter was known at the time of the order sought to be varied, it cannot be used as a basis for variation;

6. In addition to being unforeseen, the change must be at least significant, or substantial, and of a continuing nature;

7. In varying the prior order, the court must consider both the objectives of s.17(7) and the parties’ means, needs, and other circumstances under s. 17(4.1) of the DA.

Call us today at 1-877-602-9900 if you have a question about BC spousal support variation.

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