On May 1, 2012, CLETV hosted Georgialee Lang, Mark Slay and Megan Ellis, QC, some of BC’s family law leaders, in a discussion of the new Family Law Act (FLA), which passed in its Third Reading as Bill 16 and awaits to be made law.  A fascinating and fulsome 90 minutes whizzed by at lightening pace as the group covered a variety of topics of concern to family practitioners. Here are some highlights.

We’re okay with a little unfair…

Panelists agree the “significant unfairness” test leaves some uncertainty, while clearly raising the threshold for a judge to vary agreements.  One tip from the panel: if your client is contemplating an application to vary, it may be advisable to get it on before the FLA is made law. 

Moving Made Easy?

The FLA clarifies parental mobility considerably.  Court of Appeal, in R.E.Q. v. G.J.K., 2012 BCCA 146, was reluctant to embrace the primary parent’s mobility rights (for additional reading, see JP Boyd’s blog post on mobility rights and R.E.Q. v G.J.K.). Despite this, the government seems prepared to endorse such mobility rights under the FLA.

In situations of two guardians, the parent wanting to move must give the other side 60 days notice, including both a destination and a proposal for what access should look like. The other side has 30 days to object. If an objection is made, the matter goes to Court for final determination. The Court will consider if the move is being proposed in good faith and whether reasonable arrangements can be made for access by guardians and other significant persons.  Interestingly, the panelists point out, the inclusion of significant persons leaves the door open for grandparents and the like to have input on a move. 

Where international mobility is a concern, Mr. Slay suggests considering an order under the Divorce Act to make custodial rights clear. The Hague Convention requires a designation of a custodial parent, language that is not embraced under the FLA. 

Making Misconduct Relevant

Since Leskun v. Leskun, [2006] 1 S.C.R. 920, we have had an approach to spousal support which allows us to consider misconduct providing the misconduct can be tied to the need for spousal support.  The FLA gives us a codification of this, but the panel disagreed on its impact. Georgialee Lang argued that placing the principle in the legislation gives it “a little boost”, arguably making it more persuasive for judges to consider evidence of this nature.

Ms. Ellis noted that there are two possible approaches to be undertaken when looking at misconduct.  The first is to consider it a factor in looking at entitlement to spousal support generally.  The second would be used in circumstances where the misconduct was particularly egregious so as to constitute something tortious.  In this case, parties could choose to pursue a separate claim for the tort and seek compensation accordingly. 

Noticeably Absent

While the panel agreed that we are still bound by Chutter v. Chutter, 2008 BCCA 507, the Spousal Support Advisory Guidelines (SSAG) are notably absent from the FLA (whereas Child Support Guidelines are specifically referenced). The Panel discussed how this leaves it open to counsel to argue the omission is significant, and that by failing to include the SSAG, the government is communicating that they do not fully endorse them.  Whether or not such an argument would succeed, it is certainly a plausible analysis.

Whose Court is it Anyway?

Mr. Slay noted an interesting distinction that has arisen between the old and new jurisdictional provisions.  For the most part, sections 5-8 of the Family Relations Act, R.S.B.C. 1996, c. 128 (FRA) and sections 192-194 of the FLA read as similar.  An important distinction arises in section 194 of the FLA that seems to further restrict one’s ability to bring overlapping applications in Provincial and Supreme Courts. 

Mr. Slay suggested that counsel may now want to be particularly certain, when starting an action in one forum, that this is where they want to stay. For example, counsel may elect to start a without notice application for custody in Provincial Court while they prepare some of the bigger issues for a trial in the Supreme Court.  Starting the custody matter in the Provincial Court, however, would exclude the Supreme Court’s jurisdiction to hear any custody matters going forward. The panel notes that counsel sometimes mistakenly think that as long as all parties agree, a change can be made.  In situations where the change is prevented by legislation, it will not matter if the parties agree.   

Excluded rather than Included

Of course one of the major qualities of the FLA is the elimination of the term “family asset” with the introduction of excluded property.  Essentially, this means that all property is considered to be fair game for apportionment unless a party demonstrates it is “excluded property”.  The panelists noted that in essence, the test has not changed; rather, the onus is now a positive one. if you want it for yourself, the obligation is on you to prove it should be excluded. 

This led the panel to discuss implications for family law counsel, including the greater need to be able to prove any asset’s value, if you intend to exclude it at a later date. One of the best ways to accomplish this is to include valuations in any marriage agreements that are drafted.

Unequal Division

Section 95 of the FLA sets out factors similar to those taken into account when doing a section 65 analysis under the FRA.  It provides for the possibility of an unequal division of family property and while it is not necessary to do an account for excluded property, it may be done. 

The panel pointed out that the analysis with respect to property will likely be:

1. What is included as property?

2. Of this property, what should be excluded?

3. Is there a basis for an unequal division? 

Moving on up

What does the new Act say about transitions?  Essentially, if you have started an action under the old Family Relations Act, the action will continue under the FRA unless parties agree.  Given the length of some files, the determination of which Act applies will be critical. 

The panel agreed that clients will need to be advised of the significant changes on the horizon in order to make informed changes about the impact.  It was even suggested that a new area of negligence claims may arise if clients feel that they were not properly informed of the impact of the new Act.

The panel suggested that counsel should reference the FLA in any agreement that is currently being drafted.

No more Trigger Finger

Mr. Slay noted with concern that the FLA contains no more provision for triggering events.  Instead under section 81, the event will now be the date of separation.  The panel discussed how this may lead to uncertainty in a number of circumstances including cases of bankruptcy. 

It will certainly be advisable to seek agreement as to the date of separation at an early point in the litigation.

Calling it like it is

According to Ms. Ellis, an important change is the recognition family violence receives. The FLA will require lawyers to inquire into issues of family violence which, Ms. Ellis comments, will lead to a need for a lot of education for lawyers on how to elicit this sensitive information effectively.  One resource newly available to lawyers is A Lawyer's Guide to Relationship Violence.

Show up or Shut Up?

For parents who interfere with the other’s parental time (or fail to show up for their own), the panel embraced new consequences under the FLA.  Consequences include the potential loss of parenting time or the requirement to post security.

One Thing is Certain – Family Law is Never Boring!

With repercussions for so many areas of family law, it is difficult to know where to begin.  A key takeaway might be to recognize the need for collaboration among family lawyers. The scope of change is so large, the Family Bar’s best chance for success is their ability to work together.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.

In this week’s case, Van Hartevelt v. Grewal, 2012 BCSC 658, the Plaintiff was involved in a physical altercation with the Defendant R. Grewal.  While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff "with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor".

The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.

The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place. The Plaintiff was a tenant there. The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault. Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award). In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relation:

[52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn. However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment…

[54] …As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…

[64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…

[65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley. I answer all of these questions in the affirmative.

[66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it. Thus, it is both efficient and fair to impose vicarious liability. In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.

[67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of Mr. R. Grewal’s role as an on-site owner representative. As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk. They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006. The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.

[68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite. This was made in the presence of Mr. R. Grewal. Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.

[69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.

Reposted with permission. The original post appeared on Erik Magraken's blog, www.bc-injury-law.com/blog, on May 9, 2012.

Combining amendments from nine separate bills that had failed to pass in previous sessions of parliament, Bill C-10 makes fundamental changes to almost every component of Canada’s criminal justice system:

• New criminal offences 
• New and increased mandatory minimum sentences 
• The selective elimination of conditional sentences 
• Increased pretrial detention and new, harsher sentencing principles for young offenders;
• Longer waiting times before individuals can apply for pardons 
• Increased barriers for Canadians detained abroad who wish to serve the remainder of their sentence at home

• Amendments to the Immigration and Refugee Protection Act would grant the Minister of Immigration broad discretion to deny work permits to any foreign national who is ‘at risk of abuse';
• Amendments to various pieces of legislation to allow victims of terrorism to sue certain foreign entities and governments for damages

Justice critic Jack Harris stated “We think it will lead to more punishment but not safer streets, not a deterrence against criminals and in fact there will be more victims, more crimes and less safety on our streets.”

The Canadian Bar Association (CBA) has concerns with several aspects of the omnibus crime bill, including mandatory minimum sentences and overreliance on incarceration, constraints on judges’ discretion to ensure a fair result in each case, and the Bill’s impact on specific, already disadvantaged groups.

“The impact on northern residents, Aboriginal people and people with mental illness will be especially profound,” says Dan MacRury, of Sydney, Nova Scotia, chair of the CBA’s National Criminal Justice Section. The CBA believes that the Bill will make already serious criminal justice system problems much worse, with huge resource implications.

The CBA Section released a position paper stating that bundling several critical and entirely distinct criminal justice initiatives into one omnibus Bill is inappropriate, and not in the spirit of Canada’s democratic process.

“Even more important than our concerns about the process is our concern about the general direction of these initiatives. The CBA is committed to public safety, and there is broad consensus among reputable Canadian criminal justice experts as to what is most effective in achieving a safer society.

In our view, the initiatives in Bill C-10 go in a contrary direction. They adopt a punitive approach to criminal behavior, rather than one concentrated on how to prevent that behavior in the first place, or rehabilitate those who do offend. As most offenders will one day return to their communities, we know that prevention and rehabilitation are most likely to contribute to public safety.”

Justice Minister Rob Nicholson said the implementation of the various aspects of legislation will be “spaced out” over a period of time.

IN FORCE INFORMATION

The Safe Streets and Communities Act, S.C. 2012, c. 1 (Bill C-10), received Royal Assent on March 13, 2012.

The sections that require proclamation to be brought into force are listed here, and so far, there has only been one proclamation.

P.C. 2012-559 brings sections 135 and 136 of the Act into force as of  May 3, 2012. They are amending sections 3, 10(1) and 10(2) of the International Transfer of Offenders Act.

However, some sections also came into force upon Royal Assent – sections 32(2), 48, 108-146, 148-159, and 161-165.

Amending the Criminal Code:
s. 32(2) replaced Paragraph 515(6)(d) of the Criminal Code with the following:
      (d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

Amending the National Defence Act:
s. 48 replaced Subparagraph (a)(ii) of the definition “designated offence” in section 153 of the English version of the National Defence Act is replaced by the following:
       (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

Amending the Criminal Records Act:
s. 108-146 – in summary, it substitutes the term 'record suspension' for the term 'pardon'.

Amending the DNA Identification Act; the Immigration and Refugee Protection Act; Limiting Pardons for Serious Crimes Act; National Defence Act; Youth Criminal Justice Act:
s. 148-159

And Transitional Provisions:
s. 161-165

Detailed information on the status of the Safe Streets and Communities Act, S.C. 2012, c. 1 (Bill C-10), can be found here.


RESOURCES

• Omnibus Crime Bill C-10 - Canadian Civil Liberties Association
• Omnibus Crime Bill - National Post
• Submission on Bill C-10: Safe Streets and Communities Act - CBA
• Tories Use Majority to Pass Omnibus Crime Bill - National Post
• What worries critics about omnibus crime bill - CBC