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JP Boyd: Adapting Joyce and Horn Models for Divorce Act and FLA



Under the regime just past, the overlapping concepts of custody under the Divorce Act and custody and guardianship under the Family Relations Act allowed us to think of custody as a somewhat empty concept, largely valued by our clients for the perception of power and control it implied, and guardianship as the repository of the real nuts and bolts of parenting. As joint custody became increasingly prevalent, guardianship often became the flash point for conflict among our clients and we typically managed that conflict in one of two ways, by defining the rights and obligations involved in joint guardianship or by dividing the various aspects of parenting into separate spheres of authority exercised by each client. The former solution was often more practical, and resulted in the creation of the widely used Joyce and Horn models of joint guardianship as well as the Pothecary and Charleton models of joint guardianship.

The regime adopted by the Family Law Act robs us of the convenient, but likely legally incorrect, distinctions we drew between the rights involved in custody and those involved in guardianship; guardianship under the new act is certainly not synonymous with guardianship under the old act. Moreover, because the rules for the post-separation care of children under the Divorce Act and the Family Law Act are seemingly incompatible, advancing simultaneous claims under both acts strikes me as unwise and imprudent.

However, this new state of affairs needn't deprive us of the extraordinary utility of the Joyce and Horn models. The old sense of guardianship under the Family Law Act is largely reflected in the new concept of parental responsibilities, and custody under the Divorce Act has always included the rights and responsibilities of parenthood; see the discussion of this subject in Huddart J.A.’s excellent reasons in Anson v. Anson (1987), 10 BCLR (2d) 357. Let me then suggest the following reformulations adapted to each act.

Joint Custody under the Divorce Act

The Joyce Model

The spouses will have joint custody of the child on the following terms:
  1. in the event of the death of a spouse, the surviving spouse will have sole custody of the child;
  2. each spouse will have the obligation to advise the other spouse of any matters of a significant nature affecting the child;
  3. each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare;
  4. the spouses will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;
  5. in the event that the spouses cannot reach agreement on a significant decision despite their best efforts, the spouse with the primary residence of the child will be entitled to make those decisions and the other spouse will have the right to apply for an order respecting any decision the spouse considers contrary to the best interests of the child, under s. 16(1) of the Divorce Act; and,
  6. each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

Paragraph five can of course be adapted to remove the reference to “primary residence” or to require alternate modes of dispute resolution if allowing a spouse final decision-making authority would be inappropriate.

The Horne Model

The spouses will have joint custody of the child and the spouse without the child’s primary residence will have the right:
  1. to be informed of the child's medical and dental practitioners;
  2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
  3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
  4. to consult with the children's alternative caregivers and teachers;
  5. to be informed of events at the child's schools or daycare so that the parent without primary care may attend;
  6. to be informed of parent/teacher nights so that the spouse may attend;
  7. to be consulted with respect to any significant health issues relating to the child; and,
  8. to be consulted with respect to any significant change in the child's social environment.

Parental Responsibilities under the Family Law Act

The Joyce Model

The guardians will exercise all parental responsibilities with respect to the child on the following terms:
  1. in the event of the death of a guardian, the surviving guardian(s) will be the only guardian(s) of the child;
  2. each guardian will have the obligation to advise the other guardian(s) of any matters of a significant nature affecting the child;
  3. each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare;
  4. the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;
  5. in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the guardian with the majority of parenting time with the child will be entitled to make those decisions and the other guardian(s) will have the right to apply for directions on any decision the guardian(s) consider(s) contrary to the best interests of the child, under s. 49 of the Family Law Act; and,
  6. each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.
The Horn Model
The guardian with the majority of parenting time with the child will exercise all parental responsibilities in respect of the child and the other guardian(s) will have the right:
  1. to be informed of the child's medical and dental practitioners;
  2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
  3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
  4. to consult with the children's alternative caregivers and teachers;
  5. to be informed of events at the child's schools or daycare so that the parent without primary care may attend;
  6. to be informed of parent/teacher nights so that the other guardian(s) may attend;
  7. to be consulted with respect to any significant health issues relating to the child; and,
  8. to be consulted with respect to any significant change in the child's social environment.

There are doubtless other, and likely better, ways to reformulate these models and I would be glad to have your suggestions and alternatives, which I would ask you to consider providing as comments to this post.

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JP Boyd: Varying orders and setting aside agreements under the FLA



The Family Law Act prescribes a number of specific tests for the variation of orders and the setting aside of agreements which vary depending on the subject matter of the order or agreement sought to be set aside. Where no specific test applies to vary an order, the act provides a test of general application.

 

Orders

Agreements

Appointment of Parent as Guardian

Court may vary order if change in circumstances; no specific test prescribed (ss. 51(1)(b), 215(1)).

No test prescribed.

Appointment of Person other than Parent as Guardian

Court may vary order if change in circumstances; no specific test prescribed (ss. 51(1)(b), 215(1)).

Cannot be appointed by agreement.

Parenting Arrangements

Court may vary order if satisfied that there has been change in the needs or circumstances of child, including because of change in circumstances of another person (s. 47).

Court may set aside agreement if satisfied not in best interests of child (s. 44(4)).

Contact

Court may vary order if satisfied that there has been change in the needs or circumstances of child, including because of change in circumstances of another person (s. 60).

Court may set aside agreement if satisfied not in best interests of child (s. 58(4)).

Appointment of Trustee of Child’s Property

Court may remove, discharge or terminate trustee if satisfied it would be in the best interests of the child to do so (s. 180)

Cannot be appointed by agreement other than trust instrument.

Child Support

Court may vary order if: change in circumstances as defined by Guidelines, s. 14; substantial evidence has become available since hearing; or, evidence of lack of financial disclosure was discovered after the last order (s. 152(2)).

Court may set aside agreement if it would make a different order, considering factors to make child support order (s. 148(3)).

Spousal Support

Court may vary order if: change in needs or circumstances of spouse since last order; substantial evidence has become available since hearing; or, evidence of lack of financial disclosure was discovered after the last order (s. 167(2)).

Court may set aside agreement if: lack of disclosure; lack of procedural fairness; or, defence to contract made out (s. 164(3)). Court may also set aside if significantly unfair, considering: length of time since agreement made; intention to achieve certainty; extent of reliance on agreement; change in needs or circumstances of spouse; and, extend to which agreement meets objectives of spousal support (s. 164(5)).

Division of Property and Debt

Cannot be varied.

Court may set aside agreement if: lack of disclosure; lack of procedural fairness; or, defence to contract made out (s. 93(3)). Court may also set aside if significantly unfair considering: length of time since agreement made; intention to achieve certainty; and, extent of reliance on agreement (s. 93(5)).

Protection Order

Court may vary order if change in circumstances; no specific test prescribed (ss. 187(1), 215(1)).

Cannot be addressed by agreement.

Prohibition Order

Court may vary order if change in circumstances; no specific test prescribed (ss. 221(1), 215(1)).

Cannot be addressed by agreement.

Conduct Order

Court may vary order if change in circumstances; no specific test prescribed (ss. 215(1), 223-227).

Cannot be addressed by agreement.

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JP Boyd: More than "merely" less than "grossly", "significant unfairness" and the Family Law Act



The phrase “significantly unfair” is new to the law on domestic relations in British Columbia. Whatever “significantly unfair” might turn out to mean, the concept is of critical importance under the new Family Law Act [see Third Reading of Bill 16-2011 on the BC Legislative Assembly's website], as “significant unfairness” is the test that must be met before the court may:

1. divide family property or allocate family debt other than equally, under s. 95(1)

“The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to equally divide family property or family debt, or both …”

2. divide excluded property, under s. 96(b);

“The Supreme Court must not order a division of excluded property unless… it would be significantly unfair not to divide excluded property …”

3. set aside agreements dealing with property and debt, under s. 93(5); and

“… [T]he Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that … the agreement is significantly unfair …”

4. set aside agreements dealing with spousal support, including agreements waiving spousal support, under s. 165(5).

“… [T]he court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that … the agreement is significantly unfair …”

How unfair is 'significantly unfair' under the new FLA?Fairness by Degrees

The Family Law Act is chock full of new language that will require the court’s interpretation. One of the first, I suspect, will be to determine what it is that “significant” adds to the meaning of “unfairness.”

“Unfair” without a modifying adverb is used at s. 65 of the Family Relations Act, RSBC 1996, c 128, where it marks the threshold that must be passed before the court reapportions property. “Grossly unfair” is deployed at s. 96 of the FRA with respect to the reduction of arrears of child support or spousal support, and we are all familiar with the case law dealing with “grossly” as a modifier of “unfairness” in this context; see Semancik v. Saunders, 2011 BCCA 264.

The plain language meaning of “significant” suggests that the threshold of “significantly unfair” is a higher standard more burdensome than mere “unfairness,” yet less burdensome than the zenith of “gross unfairness.”

  • notable, weighty, important for what it indicates: The Century Dictionary and Cyclopedia, The Century Co., 1897, New York
  • noteworthy, important, consequential: The Concise Oxford English Dictionary, Clarendon Press, 1995, Oxford
  • important, momentous: The Imperial Dictionary, The Gresham Publishing Co., 1906, London
  • sufficiently great or important to be worthy of attention, noteworthy: Dictionary 2.2.1, my MacBook

Few clues as to the legislature’s intent are found in the Family Law Act itself. The factors set out in ss. 93(5) and 165(5) are of course mutually consistent but have nothing in common with the factors set out at ss. 95(2) and 96(b), and of the two factors listed at s. 96(b), only one, the duration of the spousal relationship, makes an appearance in the nine specific factors described at s. 95(2) [roll mouse over here to see the nine factors]; see the excellent discussion of statutory construction by reference to related provisions in Sullivan on the Construction of Statutes [KL35.1.D75 2008]. As a result, it will likely be necessary to look beyond the new act for guidance.

“Significantly unfair” is used in only one other British Columbia statute, the surpassingly dull Strata Property Act, SBC 1998, c 43. In the context of owners’ suits against strata corporations, s. 164(1) provides as follows:

On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair
(a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

Dollan v. Strata Plan BCS 15892011 BCSC 570 helpfully summarizes the law on the interpretation of “significantly unfair”, at paragraph 24:

“The phrase ‘significantly unfair’ in s. 164 has been described in Reid v. Strata Plan LMS 2503, 2003 BCCA 126 as ‘burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith’, ‘unjust or inequitable’, or unreasonable. Moreover, the word ‘significantly’ means that a court should only interfere if the actions or decision of a strata council results in ‘more than mere prejudice or trifling unfairness’ …”

In Gentis v. Strata Plan VR 368, 2003 BCSC 120, the court held that, at paragraph 28:

“… I understand the use of the word ‘significantly’ to modify unfair in the following manner. Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation’s duty to act in the best interests of all owners is in conflict with the interests of one particular owner or group of owners. Consequently, the modifying terms indicates that the court should only interfere with the use of this discretion if it is exercised oppressively, as defined above, or in a fashion than transcends beyond mere prejudice or trifling unfairness.

[29] I am supported in this interpretation by the common usage of the word significant, which is defined as ‘of great importance or consequence’: The Canadian Oxford Dictionary.”

In Strata Plan VR1767 v. Seven Estate Ltd., 2002 BCSC 381, the court emphasized the behavioural dimension of significant unfairness, at paragraph 47:

“The meaning of the words ‘significantly unfair’ would at the very least encompass oppressive conduct and unfairly prejudicial conduct or resolutions. Oppressive conduct has been interpreted to mean conduct that is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith. …”

Although some caution must be extended in recognition of the imbalance of power I expect to be characteristic of proceedings by owners against strata corporations, the general tenor of the case authority leans toward a definition of “significant unfairness” which sets the threshold somewhere beyond the “mere prejudice or trifling unfairness” mentioned in Reid v. Strata Plan LMS 2503, 2003 BCCA 126.

Whatever “significant unfairness” may ultimately be found to mean, the varying factors prescribed by ss. 93, 95, 96 and 164 to guide the court in its consideration of a case will likely result in the formulation of three different tests, each built up on a notion of unfairness that is more than merely unfair but less than grossly unfair.

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JOHN-PAUL BOYD

 

JP is a practicing lawyer with Aaron Gordon Daykin Nordlinger in Vancouver, BC and serves on the editorial board of CLE's Family Practice Manual, the Provincial Court's Family Law Rules Committee and the Attorney General's Family Law Act Advisory Group. He frequently writes and speaks on family law topics and is the founding author of JP Boyd on Family Law, a Clicklaw Wikibook, which is the successor to his popular website www.bcfamilylawresource.com.

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