The Federal Government is Looking to Overhaul the Divorce Act

Much like the government of BC did in March, 2013, the Canadian government is looking to overhaul the Divorce Act to encourage dispute resolution for families that is less conflict laden. A good article can be found in this National Post Article by Ryan Glass

Relocation with Your Child

DO YOU WISH TO MOVE WITH YOUR CHILD TO ANOTHER CITY, PROVINCE, OR COUNTRY?

The Family Law Act of British Columbia came into force on March 18, 2013 and made significant changes in the law governing relocation with children. If you would like to move with your child to another city (even a neighbouring city), province, or country, the important information below may apply to you.

 

According to Section 65 of the Family Law Act, “relocation” means a change in the location of the residence of a child or a child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with (a) a guardian, or (b) one or more other persons having a significant role in the child’s life.

 

If you are:

1)     a guardian of the child;

2)     plan to relocate by yourself, relocate the child only, or relocate with the child; AND

3)     there is an existing written agreement or court order respecting parenting arrangements or contact with the child.*

*If you do not meet these criteria, different laws apply to you. Book a free 30 minute consultation with one of our family lawyers to discuss your rights and obligations.

 

You are permitted to move with the child if you:

1)     give all other guardians and persons having contact with the child at least 60 days’ written notice of

a.     the date of the relocation, and

b.     the name of the proposed relocation.

     AND

2)     other guardian(s) of the child DOES NOT file a court application for a court order to prohibit the relocation within 30 days after receiving the notice.

 

If you meet the criteria above, you can move with the child on or after the date you set out in your written notice of relocation. 

 

An important note regarding the delivery of the written notice: Ensure there is proof of delivery of the written notice in case the other guardian(s) later allege that they did not receive the required notice. The best practice is to have the notice served personally by a third party.

 

Read sections of the Family Law Act governing relocation -  S.66, 67, and 68

 

Exception to the Notice Requirement

According to Section 66(2) of the Family Law Act, the Court may grant an exemption from all or part of the requirement to give notice to other guardians or persons having contact with the child, if it is satisfied that:

1)     notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

2)     there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

 

Book a FREE 30 minute consultation to discuss your rights and options respecting relocation with a child (commonly referred to as “mobility cases”). Our experienced family lawyers can assist you with understanding the law governing relocation with children, drafting and delivering the written notice of relocation, negotiating with the other guardian(s) if they object to the relocation, and if relocation is agreed upon, to help you and the other guardian(s) establish a new parenting arrangement and parenting-time schedule. 

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Family Trusts Under the Family Law Act

People are turning more frequently to family trusts for estate and tax planning purposes. While trusts are good tools for this purpose, care needs to be taken to examine how those trusts may be handled by the Courts when beneficiaries of the trust face their own marital separation. 

The Family Law Act that came into force on March 18, 2013 states that a beneficiaries' interest in a family trust is an excluded asset, not subject to division. The growth of the value of the assets held by that trust, however, may be subject to division. This will prove problematic where beneficiaries are unable to force the creator of the trust to pay out the division, and where there may be multiple beneficiaries to the trust. The beneficiary is normally not entitled to liquidate the assets of the trust, resulting in a problematic situation where the former spouse may have a claim that the beneficiary is unable to pay. Part of the solution may be to require beneficiaries to have marriage agreements that set out how the family trust will be treated upon marital breakdown.

If you are considering setting up a family trust, entering a relationship as a beneficiary of a trust, or are facing separation and are concerned about the treatment of your interest in a trust, contact Paine Edmonds LLP for a consultation to discuss what options are available to you. 

Changing Your Names on Accounts and Designations on Separation

This is an American article published by Forbes, therefore not all of the advice applies to our Canadian clients. However, it is important at the time of a separation to put your mind to things that should be changed immediately, such as beneficiary designations, bank accounts and automobile insurance. 

If you are considering or facing a separation, come see us at Paine Edmonds to discuss what steps you need to take to protect yourself and your loved ones. 

Admissibility of Facebook Posts

In the recently released decision of K.M. v. J.B., 2013 BCSC 2041, the Honourable Mr. Justice Butler considered the admission of Facebook postings obtained by the wife, who had accessed the husband's Facebook account with his password, given to her during the parties' relationship. The Court admitted the postings, finding that the evidence was reliable and not private, as it was broadcast to an audience who could share the posts. The Court said:

[6]             Prior to setting out the facts and my analysis of these issues, I must provide my ruling on an evidentiary issue that arose early in the trial. The claimant wished to make reference to screen shots she took of the respondent's Facebook pages. The respondent took the position that these were inadmissible on the basis they were private and had been obtained either illegally or wrongfully. The postings showed the respondent's activities at times when he was supposed to be exercising access according to the interim order. The postings also contain some negative comments about the claimant and information about the respondent's work. I indicated to the parties I would hear the evidence to consider the question of relevance which has a bearing on admissibility.

[7]             The law regarding wrongfully obtained evidence in family disputes was thoroughly canvassed in Mathews v. Mathews, 2007 BCSC 1825. At para. 43, Barrow J. succinctly summarized the proper approach to admissibility of such evidence:

From the foregoing, it is clear there is a limited discretion to exclude relevant evidence in this context.  The judicial exercise of that discretion involves a balancing of competing interests which can be usefully viewed as assessing the probative value of the evidence as against its prejudicial effect.  It does not involve the application of the Charter per se.

[8]             In Mathews, the evidence was admitted in circumstances where the father entered the mother's room surreptitiously and removed a diary from a locked box. The court concluded the actions of the father, while not illegal, amounted to a violation of the mother's privacy. The evidence was admitted as it was reliable and probative and there was no prejudice to the trial process. The existence of prejudice created by the "odious" practice of secretly intercepting private communications was offset by the prejudice that would arise by excluding the evidence. The administration of justice favours the admission of probative reliable evidence which is relevant to the best interests of the children.

[9]             In the circumstances of this case, I have no hesitation in ruling the evidence is admissible. It is relevant to the parenting question I must consider. The postings are reliable as they are the respondent's own comments to his circle of friends. Unlike the situation in Mathews and other cases which have considered this issue, little prejudice arises here from the manner in which the communications were obtained. The respondent gave his Facebook password to the claimant when they were together. After they separated he knew she still had it. The claimant admitted she probably should not have been looking at his account, but he was aware she could do so. Further, his postings were not truly private communications. They were available to be seen by a group of friends and could have been shown to others or passed on by the recipients. In these circumstances, the respondent had no real expectation of privacy in his postings.

[10]         There is no possible other prejudice in these circumstances. Indeed, the interests of justice would not be served if the court could not consider evidence which is relevant to the best interests of C.B. Exhibits A through D are accordingly admitted in evidence.

Return of the Engagement Ring

CBC reports on a couple who were fighting over ownership of the engagement ring after the relationship went sour (find the CBC story here). Generally, jewelry, including engagement rings, are considered gifts and are not property to be divided or returned on the breakdown of the relationship. In rare occasions, the Court will order the return of the ring, in circumstances where there appears to have been no real intention to marry or the jewelry is considered a promotional item, worn to impress others about the status of the couple. 

Rarely is it ordered that an engagement ring be returned and most lawyers will advise their client against going to Court on this issue alone.  In situations where there are other matters at issue, the party who gave the ring can ask for its return as a part of an alternative dispute process, however, if the matter goes to Court it is unlikely that the Court will order its return as they are seen as personal property and not assets.