Canadians Spend Tens of Thousands on Spousal Support Court Cases

It has always been true that spousal support is one of the most difficult issues to resolve in family law cases. The introduction of the Spousal Support Guidelines in 2006 did provide some assistance by offering guidance to lawyers and judges with regards to monthly amounts and the length of spousal support payments. A review of recent Canadian case law indicates that spousal support remains a thorny issue that has caused many Canadians to spend hundreds of thousands of dollars attempting to  terminate or perpetuate spousal support payments. My observations, upon reading many recent decisions, can be summarized, as follows:

  1. Many litigants’ support orders fail to indicate whether the  initial order is compensatory or needs-based. In cases of indefinite support where the parties have entered into support agreements, the need to be clear about the basis for support cannot be overstated. Most often, support orders, resulting from contested applications, will provide evidence of their nature, either compensatory or needs-based, but consent orders and support agreements often do not. The cases indicate that where a spousal support order is compensatory, it is often more difficult for a payor to terminate support abruptly. Usually, transitional support for a time is ordered.
  2. Many Canadian women have ended up in poverty in their senior years, having relied on spousal support as their main source of income. While it may seem difficult for a 40 or 50 year old woman to retrain, family lawyers should encourage their female clients to be aware that only in the occasional case does spousal support continue after retirement. 

3. Payors who retire before the age of 65 without serious health issues, will find it very difficult to persuade the court that spousal support should be terminated absolutely. Of course, other factors come into play, including the nature of the support order, the length of the relationship, the age of the parties at separation, and the length of time support has been paid.

4. Retirement after the paying spouse becomes eligible to retire with a full pension does not automatically constitute a material change that guarantees a reduction or termination of spousal support payable.

5. While judges cannot compel people to work, they can and will impute income similar to income capable of being earned.

Lawdiva aka Georgialee Lang

Court Allows 68-Year Old to Retire Despite Spousal Support Obligation

Mr. Galo Angulo brought an application to terminate the payment of spousal support emanating from an order dated June 11, 2004 in the amount of $1,400.00 per month.  Angulo v.  Angulo 2019 ONSC 1456.  His ex-wife, Shirley Angulo, brought a cross-application seeking document production from 2005 to 2018, retroactive spousal support, and an order that Mr. Angulo’s second wife make full financial disclosure of her income and assets. She also sought the appointment of a chartered business valuator to determine the value of the increase of her former husband’s RRSP since the date of separation, and asked for an increase in spousal support based on his alleged “hidden income”. 

The parties were married for 28 years, separating in 2000. Galo had remarried and had two children, ages 9 and 12. Shirley remained unmarried. Galo was 68 at the time he brought his termination application. His ex-wife was 76, having retired at the age of 65.

The parties signed a separation agreement in 2002 whereby they divided their family property equally between them.  At the time of the agreement, Galo earned $140,000 per annum as a self-employed computer programmer. Shirley earned approximately $22,000 a year, working in a clerical position. Galo agreed to pay spousal support of $2,700 per month with an annual cost of living increase.

Shortly after their separation, Galo’s contract position was terminated. He remained unemployed for a year and took additional computer courses to upgrade his skills, but continued to pay spousal support from his savings. When he found new employment with CIBC Bank his salary was reduced to $73,000 per annum, but he acquired pension benefits.  

In June of 2004 the parties entered into a consent order varying his payment to $1,400.00 a month based on his decreased income.

The separation agreement also provided that “Obligations rising out of the remarriage of the Husband or the Wife are to be taken into account in determining whether there has been a material change in circumstances.”

In addition,  paragraph 20 of the agreement read:

“Further the parties agree that the support and property division of this agreement are inextricably intertwined and constitute and full and final financial settlement. More particularly, the husband and the wife acknowledge that he and she may be called upon during the rest of their lives to use, either wholly or in part, their capital for his or her own support and they agree to do so without recourse to the other.”

Galo worked at CIBC for almost 15 years, retiring in May 2018 at the age of 68. He deposed that the responsibilities of his job became too physically and mentally demanding of him. He was often required to work 18 hours a day and take phone calls and requests at all hours. As well, his computer skills from the 1980’s were becoming obsolete and the computer systems were being redesigned using new technology and skills that he did not possess. He deposed that if he wished to keep up with the bank’s requirements, he would have to upgrade his skills at his own expense, and still not be guaranteed a position because of the competition from younger candidates. 

His medical problems included sciatica, a torn ACL, degenerative disc disease, prostate issues, and high blood pressure. His doctor’s letter confirmed his ailments and indicated the Mr. Angulo relied on pain killers. The doctor did not state that his retirement was due to medical problems. He was not asked to retire, neither was he fired, but he said that his retirement was “obvious”.

Galo’s retirement income was approximately $32,500.00, comprised of his CIBC pension and CPP and OAS. His second wife’s income was $125,000, plus a discretionary bonus. His former wife’s retirement income was $37,500, consisting of spousal support, RRIF income, and CPP and OAS.  The parties’ respective net worth’s at the date of the hearing were similar. Mr. Angulo had assets valued at $877,000, while Shirley had property valued at $713,000.

With respect to Mrs. Angulo’s request for extensive financial documents, including from her ex-husband’s second wife, the court held that all that was required by the second Mrs. Angulo was income and expense information which had been produced. With respect to document production dating back to 2005, Mrs. Angulo argued that the cost of living clause had never been implemented, hence she was seeking full particulars of her ex-husband’s historical income and retroactive support of $82,000 based on alleged “hidden income”, “hidden assets”, and the absence of additional support based on the COLA clause.

The court declined to make the orders sought by Mrs. Angulo and also dismissed her application for an expert to evaluate her ex-husband’s RRSP. The court noted that the order of June 2004 did not call for an annual review of spousal support, and neither did Mrs. Angulo apply for an increase in support, until 2019 when she raised it in the context of her ex-husband’s termination application. Mr. Justice Horkins did not believe Mrs. Angulo’s suggestion that she was afraid of her husband, and hence did not pursue additional support or disclosure over the years. He remarked that the parties shared a pet dog for eight years, with consistent interaction between the former spouses, with no evidence of abuse or intimidation. 

The court determined that Galos’ retirement was justified and reasonable and ordered that support be terminated on April 1, 2019, four months after the date of the judgment and one year after Galo’s retirement.

Lawdiva aka Georgialee Lang

60-Year Old Spouse Receives More Than 50% of Family Property Upon Separation

In Cook v. Cook 2020 BCSC 389 the issue was whether fairness, after a 38-year marriage, required a reapportionment of property in favour of Mrs. Cook, or compensatory spousal support. The parties were 60 and 61 respectively. The facts revealed that the end of their marriage accompanied Mr. Cook’s receipt of a $425,000 inheritance and a cottage property, (excluded property) a windfall that he failed to disclose to his wife. At the same time, he changed his will to benefit their adult children. 

The court noted that taking into account Mr. Cook’s excluded property, he was leaving the marriage with assets valued at more than half of a million dollars more than his wife. Quoting Moge v. Moge SCC and Chutter v. Chutter BCCA, the court recited the legal maxim that “the longer the duration of the marriage, the closer the economic union, the greater will be the claim to an equal standard of living upon marriage dissolution.”

Mr. Cook had retired from Toyota Canada, preferring to spend time at his lake cottage, no doubt buoyed by his cash inheritance. Mrs. Cook currently earned $13,000 a year. She was a stay-at-home mom up until 1999, when she began working part-time. She had no post-secondary education. At the time of trial both parties had additional pension income and in the few years prior to their 2017 separation, Mr. Cook earned an annual income of $140,000 and Mrs. Cook, $80,000. Each of them retired a few years before their separation.

Mrs. Cook had received an inheritance of $100,000 much earlier in their marriage which had been used by the family. She also received an inheritance after the date of separation, of $111,000, which was also excluded property.

Mr. Justice Jenkins determined that Mrs. Cook was entitled to compensatory support which would be satisfied by a reapportionment of property in her favour, leading to an award that saw Mrs. Cook retain property valued at $770,000, consisting of cash and real estate, while Mr. Cook would retain property valued at $977,000, also cash and real estate.

The facts of this case supported an award of compensatory support which could not be achieved through periodic support payments, given the parties’ mutual retirement and their similar ages. The length of the marriage, the raising of three children, and Mr. Cook’s excluded property, provided a basis to adjust the division of property to achieve a measure of fairness, but notably not an equalization of family property and excluded property. 

Mother Ordered to Permit Children to Attend School Based on Covid Guidelines

Schools are open in British Columbia, but what if separated parents disagree on their children’s in-person attendance? That’s when the court steps in to make a decision and the parents waste money on legal fees, better spent on their children.

In Neave v. Lai 2020 BCSC 1688 the British Columbia Supreme Court was asked to decide whether the parties’ children, ages 8 and 4, should attend their North Vancouver school, now that the government had opened schools after the shut-down between March and June 2020.

The children’s mother, who had home-schooled the children during the Covid-19 lockdown wished to continue to home school and had refused to return them to school. The children’s father, who worked full-time, desired the children’s return to school in accordance with Provincial Government guidelines and brought an application seeking such an order.

The Court noted the lack of similar cases in British Columbia and thus, referred to multiple cases in Ontario and Quebec where this issue had been adjudicated.

Focusing on Zinati v. Spence, 2020 ONSC 5231 the court quoted from that decision:

” When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i.          The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

ii.         Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii.         The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.        Any proposed or planned measures to alleviate any of the risks noted above;

v.         The child’s wishes, if they can be reasonably ascertained; and

vi.        The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.”

Applying the principles from Zinati v. Spence, the Court stated that it was not up to the Court to make determinations about education plans for children, but was the task of the Ministry of Education with the assistance of the Public Health officer.

In considering the facts before him, the Court noted that the children’s mother had been homeschooling the children since school opened in September, a situation that did not respect the father’s parenting time, as the children remained with their mother, because the father’s work schedule did not permit him to remain home and share home schooling duties. This situation substantially affected the parenting schedule.

The Court also recognized the impact of remaining at home for the older child who struggled with social and psychological issues.

The Court decided that the children should be returned to school immediately. The father did not receive a costs award, despite his success in challenging his former wife’s position because the court determined it was a “test” case in BC.

Lawdiva aka Georgialee Lang

 

Appeal Court Reviews Multiple Parenting Concepts: S. 211 Experts, Parenting Coordinators, Maximum Contact

This week the Court of Appeal had the opportunity to review and analyze a number of propositions related to the parenting of children, touching on s. 211 experts, parenting coordinators, final decision-making responsibility, and the Divorce Act’s principle of “maximum contact” with each parent. MFW v. MAH 2020 BCCA

Section 211 Assessors

In the context of a high-conflict custody case and a 26-day trial, the appeal court was asked to green-light the appellant father’s proposition that in the absence of any cross-examination of the s. 211 expert, the court was bound to accept the assessor’s recommendations. The appeal court rejected this notion citing recent decisions of their court which held that judges should not “abdicate” their roles in favour of an assessor’s recommendations. King v. Borserio 2018 BCCA 308.

The Court also declined to accept the father’s argument that a litigant who disagreed with an expert report was “obliged” to cross-examine the expert. The Court noted that the mother had considered issuing a subpoena to the assessor but upon learning of his fee to attend court, determined she could not afford to call him. The Court stated that litigants certainly had an “opportunity” to cross-examine an expert, but they were not obliged to do so .

Parenting Coordinators

Because the trial judge gave the mother final decision-making authority, the father appealed saying that the trial judge erred by “failing to comprehend the role of a parenting coordinator under the Family Law Act”. He asserted, citing FJV v. WKS 2019 BCCA 67, that the court should encourage decision-making by parenting coordinators in high-conflict cases, to avoid court applications.

The Court commented that the interplay between a court order and a parenting coordinator’s authority raised questions and uncertainties given the broad language of the Family Law Regulations. However, the Court could not identify any legal error and noted that the trial judge had appointed a parenting coordinator for a 12-month period, but also ordered that if the parties could not agree on a significant decision despite their best efforts the mother, as guardian, with the majority of parenting time would be entitled to make the decision.

Maximum Contact Principle

The trial judge ordered the children to spend more time with their mother than their father, leading the father to suggest that the trial judge ignored the maximum contact principle in s. 16 (10) of the Divorce Act. The Court refused to accede to this ground of appeal, but their analysis was short-sighted.

The Court suggested that the trial judge had relied on the Family Law Act in respect of the parenting orders saying, “It is therefore the FLA that governs…s. 16 (10) of the Divorce Act says that it applies to a court only when “making an order under this section”, when making a custody order under the federal statute…strictly speaking then the trial judge was not required to consider expressly the maximum contact principle in determining the best interests of the children.”

To their credit, however, the appeal court redeemed themselves, by quite properly adding: “I suspect that such an approach is inherent in a court’s determination of any custody or parenting arrangement.”

Lawdiva aka Georgialee Lang

Court Refuses to Set Aside Consent Order for Med/Arb

The Court in Streifel v. Forcier 2020 BCSC 1346 considered the wife’s application to set aside a consent order, which provided that the parties’ family law trial would be adjourned and that a med/arb would take place with a specified arbitrator. 


Shortly after agreeing to the order, the wife fired her lawyer and retained new counsel, who cited various grounds to set aside the order including fraud, abuse of process, unconscionability, undue influence, economic duress, material non-disclosure, irreparable harm, procedural fairness, and balance of convenience. She also asserted that her former counsel entered into the consent order without explaining the details to her and without her consent. 


The court refused to set aside the consent order noting that the wife had engaged in ongoing behaviour that contributed to the delay of the family law matter by refusing to attend multiple mandatory judicial settlement conferences; failing to attend multiple appointments for her examination for discovery, failing to attend a court hearing and a trial management conference, ignoring correspondence from her husband’s counsel, and she had interfered with the court ordered sale of the family home.

The Court noted that it was open to the wife to bring an application to adjourn the med/arb before the arbitrator.

Lawdiva aka Georgialee Lang

Hang Down Your Head George Dooley

George Dooley, of Nova Scotia, came to court seeking to be relieved of his monthly spousal support obligation to his ex-wife, Bernice Dooley, which came into effect in May 2014. The Dooley’s had been married for 34 years, and at the time he sought to vary the spousal support of $5,000 a month, each of them was in their mid-sixties. Dooley v. Dooley 2020 NSSC 109

Mr. Dooley alleged four material changes in his circumstances, as follows:

  1. Canada Revenue Agency had reassessed him and he was required to pay $295,000 in taxes;

b)  he had retired;

c)  he had separated from his second wife, Laurie;

d)  he had financial obligations to the three children of his second marriage.

The court considered each alleged material change in turn, beginning with his CRA reassessment. The evidence indicated that the reassessment took place in 2017 and that he had additional debts including a $375,000 mortgage and $60,000 in consumer debt.  As a result he had declared bankruptcy on May 1, 2017 and was entitled to an automatic discharge in January 2018. 

Rejecting the CRA reassessment as a material change sufficient to invoke section 17 of the Divorce Act, the court remarked that with his bankruptcy, all of his debts disappeared, leaving him in a better position to pay support than before the bankruptcy. The court also noted that arrears of support are not cancelled by a bankruptcy.

With respect to his retirement, the parties’ earlier agreement provided that retirement would be considered a material change in circumstance, however, Bernice Dooley maintained that her ex-husband had not retired. Mr. Dooley opened Dooley’s Pharmacy in 1984 and retained it after their divorce. He began receiving his Canada Pension Plan in 2015 and sold his interest in Dooley’s Pharmacy in September 2015, receiving $455,000 from the sale. He alleged that all of this money was now gone. 

He had also retained the family home after the 2014 divorce, which he renovated shortly thereafter. However, after receiving the funds from the sale of the pharmacy he tore down his newly-renovated home and built two homes on the property, one home for himself, his second wife and her three children; and one for Laurie Dooley’s parents.

After the sale of his business he remained working for the new owner as a pharmacist, with no guaranteed hours. In an affidavit dated August 2016 he deposed that he had not worked since May 2016, however, in a November 2019 affidavit he swore that he continued to work part-time during 2017. He had also worked at several other pharmacies in Nova Scotia prior to his move to Nunavut in September 2017. Throughout the period he maintained his pharmacy license. 

Two months after his divorce from Bernice, he married Laurie Dooley, separating from her 19 months later, but not before he adopted her three children,  10-year old twins, and a 16 year-old. The adoptions were finalized shortly after the date of their separation. His new in-laws lived rent-free in the second home he built. 

The court rejected his assertion that he was retired, remarking that his acquisition of additional financial obligations, including a second wife and three children, led to the conclusion that he could not afford to retire. 

Moving on to consider whether the separation from his second wife and assumption of financial obligations with respect to his three adopted children, constituted a material change,  the court noted that Mr. Dooley failed to provide evidence to establish the circumstances of his newly acquired family at the date of his divorce, making it impossible to determine if a change of circumstance had occurred.

Mr. Dooley and his second wife executed a separation agreement in February 2017, wherein each of them waived spousal support and each kept their own property. They agreed that they would both reside in the family home and either of them could, at a later date, apply to court to divide the home. There were no provisions for custody or child support in the agreement. However, he swore that he paid child support to Laurie Dooley for the three children, in the amount of $2,729, a sum that pursuant to the Nunavut guidelines required an annual income of $137,000.

Mr. Dooley’s evidence was inconsistent as he alleged that Laurie Dooley had claimed spousal support in their divorce petition, but later said she had not. Despite a request to provide a copy of the divorce petition, he failed to do so.

The court determined that Mr. Dooley had not proved, on a balance of probabilities, that his separation from Laurie Dooley had affected his ability to pay spousal support to his first wife:

“because there is no evidence they were in a relationship or, if they were, the nature of their relationship when the support order was granted…I don’t know whether the children were part of his household and being support by him when the spousal support order was granted. Certainly, if they were, then the current obligation to support them (even if now formalized in adoption orders) isn’t a material change”.

Not surprisingly, the first Mrs. Dooley queried whether her ex-husband’s alleged separation from his new wife, after 19 months, was  bonafide, and I agree that her suspicions were well-founded. This sounds like a classic “sweetheart” deal and does not pass the smell test. Unfortunately, for him, his ill-conceived strategies were too far-fetched for even his QC lawyer to overcome and his application was dismissed. 

In Mr. Dooley’s current financial situation, his retirement is years away, which is in keeping with Statistics Canada’s findings that 49% of Canadians 60 years or older are working “out of necessity”.

The World’$ Riche$t Lawyers

If you think all lawyers are rich, you’d be wrong. Money Inc. reports in 2016 that the average salary for lawyers in the United States is $133,000 per year. The average for Canadian lawyers is less than that. But there are a group of lawyers worldwide who have made a fortune from practicing law, not from investments or business activities, but just advising and representing clients. The list includes a few well-known names and several who fly under the radar.

1. ALAN DERSHOWITZ $25 million
A graduate of Harvard Law School in 1962, Dershowitz became a faculty member at Harvard in 1964 and a full professor in 1967. While working as a professor he gained a stellar reputation as a criminal lawyer, representing celebrities such as heavyweight champion Mike Tyson, Queen of Mean and New York hotelier Leona Helmsley, OJ Simpson, Patty Hearst, televangelist Jim Bakker, and Claus Van Bulow, acquitted of murdering his wife. He has also written more than a dozen books.

2. MARK GERAGOS $25 million

Mark Geragos is a “celebrity” lawyer who has acted for Michael Jackson in his sexual molestation trial; Winona Ryder for shoplifting; California politician, Gary Condit, who was suspected of murdering his Washington, DC intern; Susan McDougal , partner of the Clinton’s involved in the Whitewater scandal; Scott Ferguson, convicted of murdering his wife Lacey; and Chris Brown, who pleaded guilty to the assault of his girlfriend Rhianna. Named one of the 100 Most Influential Attorneys in California, he also holds the record for one of the top ten jury verdicts in California for a 2008 award of more than $38 million against a pharmaceutical company

3. WILLIAM LERACH $900 Million

William Lerach specialized in corporate law, specifically private securities class action lawsuits, the largest being the $7.12 billion he obtained as the lead attorney in the action against Enron. Nicknamed the “King of Pain”, he was reputed to be one of the most feared lawyers in the US during his 30-year career. In 2010 Pulitzer Prize winning journalists, Patrick Dillon and Carl Cannon wrote a book about Lerach called “Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to its Knees”. He no longer practices law after pleading guilty in 2007 for obstruction of justice, related to a kickback scheme, and serving a two-year prison sentence. He was disbarred in California in 2009.

Lawdiva aka Georgialee Lang

When Will Our Judges Speak Out Forcefully Against Perjury?

Ngo v. Do, 2017 BCSC 83 (CanLII)
by Georgialee Lang BA JD FCIArb

In yet another British Columbia family law decision, the court fails to denounce, in the strongest terms, a litigant whose testimony is rife with lies. Yes, this judge addresses credibility, but in the same anemic way that permeates most family law cases, namely ” I accept the evidence of the claimant where it differs from the evidence of the respondent.”

That’s it, no rebuke, no censure, not even an award of special costs, despite the litigant’s devious conduct requiring untold extra preparation and court time to present a narrative that is flagrantly false, requiring a robust defence….yes, a rebuttal to a pack of lies.

Ngo v. Do 2017 BCSC 83 focuses on the breakdown of the marriage of a Vietnamese couple who agreed they married and immigrated to Canada in 1994. From that point on the parties’ evidence is sharply divergent.

He said their marriage ended two years later, in 1996, while she maintained they lived together as husband and wife in the family home in East Vancouver until their separation in 2012. When asked where he lived after 1996, since he alleged he did not live with his wife and children, he was unable to provide a single address, except to say that he lived in East Vancouver with a friend.

When asked to explain how it was that he and his wife added three additional children to their union after his alleged departure in 1996, he acknowledged that despite the shattering of the bonds of matrimony, they remained intimate with one another.

The date of separation was critical to a determination of the wife’s interest in two homes, a crab boat, and a license to catch crab. Ms. Ngo testified their first home was purchased in 2000 and became the family home where she and her husband raised the children, for all but one year of their marriage. She believed the home was registered in her husband’s name. Not so, said Mr. Do. He testified that the home’s owner was Mr. Den Van Ta, who he said he barely knew, although he had earlier said Den Van Ta was”like a brother” to him.

A second home in Maple Ridge was purchased in 2004, however, Mr. Do said it was purchased by his cousin, Kevin Phan. He testified that he lived with the children in the home from 2004 to 2008 rent-free and that Ms. Ngo was not permitted to live there. Ms. Ngo gave evidence that her husband told her the second home was rented out, but in 2006 he moved the family to the second home for a year, advising her that it was a more convenient location to travel to his employment in Maple Ridge.

Eventually the Maple Ridge home was registered in Mr. Do’s name. He explained that his cousin took pity on him and gifted the property to him in 2007. However, land title documents described the transaction as a cash sale for $445,000, subject to his cousin’s existing mortgage. Mr. Do sold the Maple Ridge home in 2009 netting $145,000 in profit.

Mr. Do’s lucky streak continued. He advised the court that the first home in East Vancouver was later gifted to him by Mr. Den Van Ta. The statement of adjustments described the transfer as a “gift of equity from the seller to the buyer in the amount of $269,000.” He also purchased a vessel and crab license sharing the cost equally with Mr. Den Van Ta, who, no surprise here, later gifted his one-half interest in their crab business to Mr. Do, gratis, for free.

The parties’ two eldest children corroborated Ms. Ngo’s evidence, while Mr. Den Van Ta was called to back up Mr. Do’s version of events with respect to the first home and the crab business. He was less than impressive. Mr. Phan was not called to testify leaving the court to draw an adverse inference.

The outcome? Mr. Do’s evidence was rejected and all the family property was shared equally. However, nowhere does the court suggest that Mr. Do’s perjured testimony is an abuse of process or of such a character as to bring the administration of justice into disrepute. Can anybody reason why Ms. Ngo was not awarded special costs, which is a full reimbursement of every penny she paid to her lawyer to respond to her husband’s pernicious lies? The court’s apparent trivialization of perjury by failing to award special costs to Ms. Ngo sends a strong message to litigants that perjury is acceptable.

Pulitzer prize-winning author James B. Stewart succinctly writes in “Tangled Webs: How False Statements are Undermining America”: “Our judicial system rests on an honor code: “I swear to tell the truth, the whole truth and nothing but the truth.” Perjury is not acceptable behaviour.”

Lawdiva aka Georgialee Lang

Court of Appeal Clarifies Law on Relocation in the Face of an Interim Parenting Order

With our increasingly mobile society the number of parental relocation cases continues unabated. In British Columbia the provincial legislators have done much to remove the mystery of the relevant considerations on parental and child mobility cases with the introduction of Division 2 and Division 6 of Part 4 of the Family Law Act.

In KW v LH 2018 BCCA 204 the Court of Appeal considered which sections of the legislation were applicable where there was a previous order regarding parenting. The Family Law Act states that where there is no order or agreement section 46 applies and where there is an order or agreement section 65 applies.

The issue raised by the appellant mother, whose application to relocate with her 6-year-old son from BC to Nova Scotia was dismissed, was whether section 46 applied in circumstances where there is no order, interim or otherwise at the commencement of the proceeding, but before trial such an interim order is made. This issue had not been fully resolved by previous conflicting authorities.

In the court below the judge applied the provisions of Division 6 (section 65) which the appellant argued constituted a reversible error of law.

The facts revealed that in June 2015 the children’s mother filed a Notice of Family Claim. The parties attended a JCC where a consent order was made for a section 211 report, and in November 2015 mother served written notice on her husband that she wished to relocate with the children to Nova Scotia. The husband indicated he would challenge the move and both parties delivered several other related applications, including for child support, parenting orders and other related matters.

In January 2016 an order was made for parenting for the husband and an interim order barring either party from relocating with the children was made. Months later the mother amended her Notice of Family Claim to include a relocation order. In her amended Claim she abandoned a claim for an interest in the family home and spousal support.

The trial commenced in March 2017 and ran for 14 days with 18 witnesses. The section 211 report author testified that a move to Nova Scotia was not in the children’s best interests. Written closing submissions were in excess of 300 pages.

In light of the previous interim parenting orders, the trial judge held that sections 65 and 69 of the Family Law Act applied. The trial judge also found that the mother’s wish to relocate was based on her desire to be closer to her family and farther from her husband. The judge accepted the opinion of the child custody expert and declined to grant the relocation order sought by the mother. He stated:

“In my opinion the determining date on which the court is to consider if an agreement or order exists respecting parenting arrangements is the date when the application to relocate is heard. An agreement or order respecting parenting arrangements gives guardians legitimate expectations about those arrangements which the courts will enforce in appropriate circumstances. Those legitimate expectations include the obligation found in Division 6 to persuade the court that a relocating guardian is acting in good faith.
I conclude that Division 6 of the FLA governs the [Mother’s] application to relocate.”

The appeal court considered a number of lower court decisions on the issue of whether an interim parenting order brings a relocation case into section 65 of the Family Law Act and held that it did not.

“Absent an existing agreement between the parties, when an initial application is brought for an order respecting parenting arrangements under s. 45 and a guardian indicates in his or her pleadings or by notice in writing of an intention to change the child’s residence, s. 46 applies notwithstanding that an interim order is made in the course of the proceedings. To the extent that many cases suggest otherwise, those cases were wrongly decided and should not be followed.”

The appeal court considered whether they would remit the matter back to the trial court and decided not to do so. Based on the trial judge’s finding of facts, with the exception of the finding that the mother’s move was motivated by a desire to distance herself from his child’s father, which the appeal court said was contrary to the evidence at trial, the court allowed the mother to relocate to Nova Scotia. The court urged the parties to work out a parenting schedule for the father, depending on whether he remained in BC or moved to Nova Scotia.

Lawdiva Court aka Georgialee Lang