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Thursday, January 26, 2017 @ 7:00 PM

Family Law - Custody and access - Considerations - Best interests of child - Contest between parents and non-parents

Appeal by the potential adoptive parents from trial judgment granting the biological father custody of his five-year-old child. The appellants were the child’s caregivers since the child was one year old. The child was born six months after the biological parents separated. The father had not consented to the adoption and secured access to the child within a few months of the child’s placement for adoption with the appellants. The trial judge accepted the recommendation of an assessor that the child be placed with the father. Both the father’s and the appellants’ experts acknowledged that the child was experiencing separation anxiety, but differed on the severity of the child’s experience, what long-term effect it might have, and the best way forward in the matter. The trial judge found that the child bonded and attached to both the appellants and the father, saw them all as parents, and felt at home in both places. He accepted the child’s separation anxiety was part of the normal process of a child having different parental visitations and that separation from one attachment was not necessarily destructive to a child in the long term if the child moved to another attachment in a nurturing environment with professional support. The trial judge concluded that it was in the child’s best interests to transition to the father’s home, aided by the professional assistance of a counsellor. In determining the child’s best interests, the trial judge considered the combination of the father’s long-term parenting ability and experience, direct blood connection to the child, custody of other siblings, proximity to other family members, their connection to Nakoda culture, and the father’s leadership role in the community. The appellants argued that the trial judge improperly weighed the relevant factors in determining the child’s best interests. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Parenting co-ordinators can turn down heat

It was the most difficult child custody case in Ronak Leena Yousefi’s experience as a family lawyer in Vancouver. It had been in and out of the courts for seven years, sometimes three or four times in one month, with some hearings lasting a full day or two. The child was developing anxiety symptoms as her parents battled over the tiniest details of her life. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Family Law - Custody and access - Considerations - Best interests of child - Access - Contest between parents and non-parents – Rights of non-parents - Grandparents

Appeal by the mother from an order awarding access to the child’s paternal grandparents. In 2015, the child’s father passed away from cancer. Prior to his passing, the paternal grandparents visited the child regularly. The parties disagreed over the frequency of the visits. Following the father’s passing, the mother and the child moved in with her parents. The paternal grandparents did not visit the child for several months due to strained relations with the mother. The mother maintained that she had not denied access, but merely required an apology for past ill treatment. The grandparents commenced court proceedings and obtained interim access. The application judge found that the child’s best interests were consistent with fostering and nurturing a relationship with his grandparents. The judge ordered access gradually increasing over a four-month period to a day-long visit every second weekend. The mother appealed. ... [read more]

Thursday, December 22, 2016 @ 7:00 PM

MAINTENANCE AND SUPPORT - Child support - Considerations - Dependent children - Child’s age - Orders - Enforcement of orders - Arrears of maintenance - Reduction or rescission of arrears

Appeal by the father from a judgment fixing the date of termination of child support and calculating arrears. The parties’ child was born in 1984. The mother and child were residents of British Columbia and the father resided in Saskatchewan. In 2006, a consent order was granted in British Columbia requiring the father to pay monthly child support of $608 based on an income of $65,294. The father unilaterally terminated support when the son was 17 years of age after learning he was residing with a family friend rather than the mother. The living arrangement was, in part, so the child could participate in alternative learning for students with ADHD. The child received a room and board subsidy of $610 per month and returned to the mother’s home on weekends and holidays. The mother disclosed the subsidy to maintenance enforcement authorities. The program proved to be a considerable success. In May 2014, the child graduated high school with distinction at age 19. In 2015, the father applied to cancel arrears based on the change in the child’s living arrangements. The chambers judge terminated the father’s support obligation as of the date of the child’s high school graduation and calculated arrears effective thereto. The father was ordered to pay arrears fixed at $20,553 at a rate of $856 per month. The father appealed. ... [read more]

Thursday, December 22, 2016 @ 7:00 PM

Family Law - Child protection - Practice and procedure - Parties - Independent representation of children - Standing - Appeals and judicial review

Appeal by two children, represented by counsel appointed under the Public Guardian and Trustee Act, from an order striking the father’s appeal as moot. The appellants were the youngest of six children apprehended from their father’s care in 2011 and 2012. The Ministry commenced protection proceedings in Provincial Court, citing a long history of alcohol abuse and child neglect. The children’s mother passed away prior to the hearing. The Provincial Court found all six children in need of protection. The three youngest children were the subject of a permanent order. One child was placed with a person of interest. The two remaining children were returned to the father’s care under a supervision order. The father appealed to the Court of Queen’s Bench. Two lawyers were appointed as counsel for the three youngest children. The children indicated a preference not to return to their father’s care. Prior to the appeal, the Ministry indicated during a teleconference with the judge and counsel for one child that it no longer had protection concerns related to the father, and that there was a possibility of an application for custody by the children’s foster parents. Following conclusion of the call, the Queen’s Bench judge issued a fiat striking the appeal as moot and, in the absence of any protection concerns, ordering the return of the children to the father. Counsel representing the two youngest children obtained leave to appeal the order to the Court of Appeal. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Family Law - DOMESTIC CONTRACTS AND SEPARATION AGREEMENTS - Types - Separation agreements - Formation - Capacity - Practice and procedure - Appeals and judicial review

Appeal by the husband from a judgment partially upholding the spousal support provisions of a separation agreement. The parties married in 1984 and separated in 2006. Their children were born in 1985 and 1988. The husband experienced mental health difficulties in his 20s, requiring hospitalization on two occasions due to depression. His condition caused problems with impulsiveness, short-term memory and disorganization. The wife developed chronic pain from injuries suffered in two pre-marriage automobile accidents. The couple’s health problems continued throughout their marriage, causing unhappiness and financial pressures throughout the 1990s. The husband’s condition improved after 2001 due to a new combination of medication. He took full-time work as a transit driver. The wife worked part-time as a pharmacy technician, moving to full-time work in 2010. However, by 2006, it had become apparent to the couple that their marriage was ending. They sold their home and a separation agreement was drafted by a lawyer retained by the wife. Counsel arranged independent legal advice for the husband. The agreement contemplated spousal support of approximately $1,320 per month, subject to a formula to calculate increases, payable for 22 years. The husband executed the agreement, believing he had no choice. The husband’s gross annual income in the years prior to trial ranged between $55,000 and $81,500. The wife’s annual income in the same period ranged between $32,000 and $49,000. The husband sought to set aside the support provisions of the agreement with termination of his spousal support obligations. The trial judge found that it was not established that the husband’s mental health challenges deprived him of capacity to enter the separation agreement and appreciate its consequences. He received complete and adequate independent legal advice prior to execution. He was not unduly influenced by the wife, as he had actively participated in the negotiation process for two months. Although the quantum of support was reasonable, the 22-year duration was contrary to the requirement of the wife to become economically self-sufficient. The provisions tied to duration were set aside. The husband was required to pay ongoing support, subject to review at the end of 2016. The husband appealed, seeking termination of his support obligation. ... [read more]

Thursday, December 08, 2016 @ 7:00 PM

Spousal support - Considerations - Agreement - Effect of parties’ subsequent relationships - Income of parties’ spouses - Variation or termination of obligation - Changed circumstances

Appeal by the wife from summary judgment varying and terminating spousal support and cross-appeal by the husband from the aspects of the judgment that refused to rescind the initial support order or set aside the parties’ marriage contract. The parties married in 1985. The parties executed a marriage contract the day before their wedding. The wife, age 24, had limited education and skills. The husband, age 42, was a multilingual commercial pilot. They had one child, now age 25. The wife was the family’s full-time homemaker. The husband worked as a pilot until he lost his licence in 1996. He received disability benefits thereafter and, at age 60, a retirement pension income. In 2004, the parties separated. In 2005, the wife accepted a settlement offer incorporated into a consent order. Although the husband subsequently challenged the validity of the consent order in a series of related proceedings, he made the equalization payment of $185,000 and monthly spousal support payment of $2,200 contemplated by the order. In 2014, the husband moved for summary judgment varying spousal support and rescinding the consent order. The motion judge reduced spousal support retroactively with an effective termination date of November 2016. The husband was awarded a judgment of $15,000 for overpayment of support. The remainder of the relief sought was denied on the basis the 1985 marriage contract was unenforceable. The wife appealed and the husband cross-appealed. ... [read more]

Thursday, December 08, 2016 @ 7:00 PM

Family Law - Marital property - Practice and procedure

Appeal by the wife from an order granting the husband leave to bring a counter-petition for equal division of family property and the family home. The parties married in 2002, separated in 2013 and divorced in 2014. They had three children. Prior to marriage, the parties executed a prenuptial agreement that provided for the family home to go to the wife upon dissolution of the marriage. The agreement also provided that each party retained their own property brought into the marriage, including any increase in value. In 2014, the wife commenced a petition for divorce and sought relief related to the parties’ children. She cited the prenuptial agreement in respect of issues related to family property. In 2015 following the divorce order, the husband filed a notice of application seeking leave to advance a claim for equal division of family property and the family home. The supporting affidavit indicated a desire to challenge the prenuptial agreement. He relied on Rule 1-6 of the Queen’s Bench Rules. The chambers judge granted leave for the husband’s application to proceed on the basis the husband’s failure to file a counter-petition was a mere formality that did not give rise to a procedural irregularity. The wife appealed. ... [read more]

Thursday, December 01, 2016 @ 7:00 PM

Family Law - CUSTODY AND ACCESS - Considerations - Expert report or assessment - Custody - Sole custody - Practice and procedure - Evidence - Contempt - What constitutes

Appeal by the mother from findings of contempt of earlier orders, as well as from an order varying custody from joint to sole custody in favour of the father. The parties divorced in August 2014. The child was placed in their joint custody, with each party having full parental responsibilities and being liable to pay for a parenting coordinator. The parties’ incomes for support purposes were set at $200,000 each in a subsequent order. In that same order, net family property was valued at $1.4 million, and the mother was ordered to pay the father $593,893 in equalization and to return certain artwork and personal items to the father. The joint parenting regime did not work out and the child was in distress. The mother failed to sign the Parenting Coordination Agreement until two months after the father filed his application for sole custody of the child and for contempt findings against the mother. The parenting coordinator was permitted to file a report, indicating that the mother was causing the child distress by forcing her to pretend she was unhappy at school and with the father. He recommended that the child live primarily with the father during the school year, with the mother having parenting time on weekends only until the summer vacation, when she would have the child for six of 10 weeks. The mother was found in contempt of the initial order and the subsequent order dealing with financial matters 32 times in total. The allegations included failing to engage the parenting coordinator, failing to communicate with the father respectfully, disparaging the father to the child and in public, discussing the family proceedings publicly, failing to return the father’s art and belongings, and failing to pay her share of the child’s expenses. She was fined $250 for each count of contempt, for a total of $8,000, and was ordered to post security for her future good behaviour of $16,000, double the amount of her fines. The judge found that the father established changed circumstances warranting a variation of parenting arrangements, based on the mother’s non-compliance with the plan originally envisioned. ... [read more]

Thursday, November 24, 2016 @ 7:00 PM

Family Law - Marital property - Equalization or division - Considerations - Conduct of parties - Dissipation of assets, preservation of property - Unequal division of property

Appeal by the wife from an order striking a portion of her claim. The parties married in 1993 and separated in 2013. They had two children. The wife commenced divorce proceedings. She sought to amend her claim for equalization of net family property to provide for an unequal division in her favour. The wife alleged the husband recklessly depleted net family property by spending money on extramarital affairs and prostitution. The husband moved to strike the amendment. The motion judge found, having regard to the Civil Procedure Rules, that the wife pled insufficient material facts in support of her claim. The concept of depletion for the purpose of an unequal division of property related to an end financial result rather than the moral nature of the alleged spending. Relying on the Family Law Rules summary judgment provisions, the motion judge struck the relevant portions of the wife’s amendment without leave to amend. The wife appealed. ... [read more]