Divorce is an emotionally and financially difficult process, leaving many people on the verge of insolvency. It is important for both parties to a divorce to know that while some types of debts are forgiven upon the completion of bankruptcy, many family law obligations are not. Spousal and child support obligations pursuant to a family court order are not dischargeable debts. In fact, a recipient spouse under a support order receives a preferential payout, placing them ahead of many other types of creditors in line to receive the same assets.

Costs awards in family law proceedings are categorized the same as the subject matter that the trial or application addressed, and each are treated differently in bankruptcy. A costs award following a trial dealing with support claims will be treated as a non-dischargeable debt, for instance, while a costs award following a parenting trial would be considered an unsecured claim in bankruptcy. Many trials do not deal with a single discrete issue, which risks making the categorization of a costs award on bankruptcy unclear. For this reason, it is important to consider whether the parties are at risk of insolvency at the time a cost order is made, so that costs can be apportioned per issue addressed at trial.

Entitlement for spousal support can be contractual, needs-based, or compensatory if one party was disadvantaged by the breakdown of the marriage. Once the court finds entitlement, they consider how long and how much should be paid for spousal support. An order for spousal support can be retroactive as well as ongoing.

In the past, some judges have declined to order retroactive spousal support or ordered a lower amount when there has been substantial delay in seeking spousal support. However, in a recent case, Legge v Legge, 2021 BCCA 365, the Court of Appeal has confirmed that where there is a clear entitlement to spousal support, a court should make a retroactive spousal support award that takes into account both the payor’s circumstances and the objectives of the spousal support, notwithstanding delay.

In this case, the parties separated after an 8-year relationship. The couple had met while the wife was pursuing post-secondary education, and decided to move to Alberta for the husband’s employment. The wife’s education was interrupted while both parties worked. They had a child together, and the wife became her primary caregiver and worked part-time. Following their separation, the wife initiated court proceedings for spousal support among other things, however, she never received a final or interim spousal support order.

Several years later, the husband commenced a divorce and property division action, and the wife counterclaimed for retroactive spousal support. At trial, the judge found that the wife had been disadvantaged by the marriage and also had a needs-based entitlement for spousal support, but that the 10 years since the parties had separated constituted undue delay. As a result, they declined to make a retroactive spousal support award.

On appeal, the court found that the trial judge had given insufficient weight to the wife’s needs and hardship, and thus the Order had failed to meet the spousal support objectives. The Court of Appeal was further persuaded by the recent Supreme Court of Canada Case Michel v. Graydon2020 SCC 24, which highlights the many obstacles to access to justice faced by family litigants, and requires courts to consider the reason for any delay in bringing proceedings. As a result, the Court of Appeal awarded the wife a lump sum retroactive spousal support award of $27,000.

Do you think you might have a case for a retroactive spousal support appeal?

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Disclosure is a material issue in many family law cases. Without a clear idea of each party’s assets, a fair division of property is nearly impossible. However, there are clear limits to what the courts are willing to grant in an order for disclosure. In general, an applicant must specify which individual documents or category of documents they are requesting, link their request to a live issue in the proceedings, and justify the need for the disclosure of these documents (Mossey v. Argue, 2013 BCSC 2078).

In a recent case, Etemadi v Maali, 2021 BCSC 1003, one of the parties applied for an order to force disclosure of a hard drive. A hard drive was found to have the same legal status as a bookshelf or a filing cabinet; to grant an application for disclosure of a hard drive would amount to an authorization to search, which is not in keeping with the purpose of the disclosure rules. The court, therefore, declined to grant the order for production, stating that the interest of protecting privacy and privilege outweighed the desirability of absolute disclosure in this case.

 

Custody and access to children are complex issues requiring consideration of which circumstances would best benefit the interests of the child. Often, one or both parents may desire a change in custody or access. This can be accommodated so long as they can prove that a material change in circumstances has occurred since the last order was made.

A change can be said to be “material” if the situation presently in force would have resulted in a different order originally being made. Requests for variation are resolved entirely based on what will benefit the child, rather than what either of the parents want (Gordon v. Goertz, 1996 CanLII 191 (SCC)).

Variation is permitted under section 17 of the Divorce Act, which further stipulates that a parent’s newly developed terminal illness or critical condition qualifies as a change of circumstance. A child’s increased age and expressed wishes to spend less time with a parent can also constitute a material change ( M. (S.M.) v. H. (J.P.), 2016 BCCA 284). Intensified and more frequent conflict, if egregious enough, can also serve as a material change (Friedlander v. Claman, 2016 BCCA 434).

Section 47 of the Family Law Act also gives authority for a court to change an order of custody or access. Section 216 of the Family Law Act allows the court to address interim orders (K. (B.) v. B. (J.), 2015 BCSC 1481). Again, the parent desiring the order’s variation must prove a material change in circumstances. The change cannot be one that was contemplated and addressed in the prior order (Gordon v. Goertz, 1996 CanLII 191 (SCC)), such as a foreseen adjustment to a child’s extra-curricular soccer schedule. Material change can be shown through, for example, a parent becoming mentally ill, a child desiring to have less or more time with a parent, or a parent successfully completing counseling and improving their ability to be a guardian.

Although less frequently invoked, the court also has jurisdiction to change an interim order even if there has neither been a change in circumstances or new evidence. The court may only do so if a change would be in the best interests of the child (R. (R.) v. L. (S.), 2016 BCSC 1230. If you have concerns about your family matters, please contact Heath Law LLP to book a consultation.

Through the Notice to Mediate (Family) Regulation, BC Reg 296/2007, a party to a family law proceeding may require the other spouse to participate in mediation with them. Mediation, if successful, can have many benefits including a shorter timeline, decreased cost, and lower conflict. It’s also much less formal than court, and private.

A notice to mediate can be served on the other party at any point that is 90 days’ time after the first response to the family claim is filed, and 90 days’ time before the date of the trial. The parties must agree on which mediator to select, and if they cannot, any party may apply to a roster organization that maintains a list of experienced mediators who would be sufficient. The roster organization will provide a list of options, and the Regulation then requires parties to eliminate certain mediators to which they object. The roster organization will make the final call on who the mediator will be, taking into account the parties’ indicated preferences, the mediator’s qualifications and fee, and scheduling availability.

The mediator is required to hold separate pre-mediation appointments with each party, where they’ll screen for potential power imbalance or abuse. If this appointment leads the mediator to believe that the process would be inappropriate or unproductive, they can conclude the mediation at that point and the parties will need to go through with litigation. Parties are not obligated to settle all or any of their issues at mediation but must attend and participate in good faith. Mediation requires parties to be reasonable, relatively calm, and open to negotiation. Considering how emotionally charged separation is for many individuals, mediation certainly isn’t the answer for everyone, but it may be worth an attempt.

 

Both the Divorce Act and the Family Law Act give authority to change the amount of spousal support that must be paid, and although worded differently, both acts require a change in circumstances before the variation is warranted. It’s important to bring the variation application under the Act which the support order was originally made under; the Family Law Act cannot be invoked to change a support order made under the Divorce Act (Malbon v. Malbon, 2017 BCCA 427), and vice versa.

The factors for the court to consider when asked to change spousal support are set out in section 17 (4.1) of the Divorce Act and Section 167 of the Family Law Act. In case law, a substantial change of circumstances has been constituted by multiple scenarios including:

• A change in income;
• A change in expenses;
• Retirement;
• Re-partnering; and
• A change of residence for the child.

If parties presume the payor’s income will somewhat fluctuate, but instead it increases significantly, the situation will likely meet the requirement of a substantial change in circumstances (Jennens v. Jennens, 2020 BCCA 59). Purposeful, voluntary changes made to one’s life, such as taking a larger mortgage for a shorter amortization, will not lead to a change of support (Poon v. Poon, 2005 BCCA 60).

A foundational principle of the spousal support obligation is that payor’s must compensate their spouses when that spouse’s contributions to the family allowed the payor to obtain the high income they later benefit from (Judd v. Judd, 2010 BCSC 153).

Voluntary retirement is typically more carefully analyzed by the courts than forced retirement. When considering if retirement justifies changing support obligations, the courts will look at age, background, employment opportunities, and the objectives of the support order (Brouwer v. Brouwer, 2019 BCSC 274). In Cramer v. Cramer, 2000 BCCA 272, the payor was forced to retire due to a health condition, the estate had been split equally originally, and the payee spouse had failed to follow through with educational plans that would have led to financial self-sufficiency. The payor’s retirement constituted a change in circumstances and the spousal support was terminated entirely.

Remarriage or re-partnering alone is not sufficient to trigger a material change in circumstances (Morigeau v. Moorey, 2013 BCSC 1923). But when combined with other factors such as an increase in the payee’s workplace earnings, the requirement can be met (Clarke v. Clarke, 2014 BCSC 824). A change in the children’s residence, meaning an increase in expenses for the parent who is primarily caring for them, can constitute a change in circumstances sufficient to vary spousal support (Aspe v. Aspe, 2010 BCCA 508). . If you’d like assistance with resolving any family matters, please contact Heath Law LLP to book a consultation.

When relationships dissolve, parties often become concerned that their property will be disposed of or encumbered against their wishes. Property division will be addressed and ultimately resolved as separations move forward, but until agreements are finalized, it may be beneficial for spouses to take certain interim measures. The three types of entries often registered against the title of a property with the Land Title Office are:

• A certificate of pending litigation;
• A Land (Spouse Protection) Act entry; and
• A caveat.

While a certificate of pending litigation (“CPL”) does not create rights to the property which the party did not have before, it does provide notice to would-be creditors or buyers that an interest in the property is being claimed. This dissuades the vast majority of creditors or buyers, with the affect that the property is protected from disposition or encumbrance. The CPL is registered against the title of the property and can be filed against property owned by either or both spouses. A CPL may only be registered once the family law proceedings have begun.

If the property is held in the sole name of one spouse, the other spouse may make a Land (Spouse Protection) Act entry against it. Entries may not be made if the property is held in joint tenancy. The entry will prevent the property from being disposed of without consent. Entries can be made before court action has been commenced but must be made within one year of the spouses residing together in the home. The Land (Spouse Protection) Act has specific forms for the entry application and affidavit. Spouses must have been married or have been in a marriage-like relationship of at least two years.

Finally, if it’s not possible to apply for a CPL or Land (Spouse Protection) Act entry, a caveat may be used. A caveat is a temporary measure registered against the title of property owned by the other spouse. Caveats must be applied for through the correct form offered by the Land Title and Survey Authority, and lapse two months after their registration.
Not anyone can apply for the entries listed above; only people who are spouses or parties to the family law case may apply. If you have concerns about your property or family matters, please contact Heath Law LLP to book a consultation.

Religious-based contracts, such as a Maher, can create increased complexity for the family justice system. A Maher is a contract which some Muslim couples will enter into upon marriage. The Maher can have the effect of requiring the husband pay the wife a specified amount of money if divorce occurs. The value can often be extravagant, such as hundreds of gold coins.

In Kariminia v. Nasser, 2018 BCSC 695, the court ordered that an Islamic marriage contract should be upheld such that the husband was required to pay the wife the value of 114 Bahar Azadi gold coins, equivalent to $49,020 CAD, upon the breakdown of their marriage. The court held that, as per Bruker v. Marcovitz, [2007] S.C.J. No. 54, a dispute can be addressed in the judicial atmosphere even if it has a religious aspect.

Further, people can freely choose to transfer moral obligations related to their religious orders into legal obligations. In upholding the Maher, the court further noted that Canadian law acknowledges cultural diversity (Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (B.C. S.C.)). Ultimately, the Maher in Kariminia was an amount which the husband could realistically pay, the document was signed by both parties, and could be upheld as a valid marriage contract.

On multiple other occasions, the courts have also interpreted contracts for Maher by considering if they’re enforceable “marriage agreements” under family law legislation. In M. (N.M.) v. M. (N.S.), 2004 BCSC 346, the court held that the husband was aware of and understood the amount stipulated in the Maher. He recognized that the Maher was a legally binding document, and wished to marry in compliance with it and the Ismaili faith. The wife in M. (N.M.) was entitled to $51,250. In Amlani v. Hirani, 2000 BCSC 1653, a Maher was again upheld as a valid marriage contract under the Family Relations Act. As a note, the current Family Law Act would apply to marriage contracts entered into after March 2013.

Both the current Family Law Act and the prior Family Relations Act give the courts power to set aside agreements regarding property division on the basis of unfairness. And in Delvarani v. Delvarani, 2012 BCSC 162, the court did just that. The Maher was for the amount of 3000 Bahar Azadi gold coins, which equated to $750,000 CAD. The court held that the husband likely didn’t agree to this payout, especially on top of the financial obligations he’d already have to abide by under BC law. There was no connection between this exorbitant amount of money and the short duration of the marriage, the needs of the wife, nor the husband’s ability to pay.

 

In certain circumstances, a party required to pay child support may need to claim undue hardship under section 10 of the Federal Child Support Guidelines (the “Guidelines”).This means that the party would be caused to suffer unduly if made to pay the full amount of support originally required. If the party shows the court why they’re unable to pay the amount of support determined under the Guidelines, the court may reduce the value they’re obligated to pay.

Circumstances that may cause a party to suffer undue hardship include:
• The spouse has responsibility for an unusually high level of debt reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
• The spouse has unusually high expenses in relation to exercising parenting time with a child; or
• The spouse has a legal duty to support any person who is unable to obtain the necessities of life due to an illness or disability.

The party claiming undue hardship must also prove that they have a lower standard of living than their ex-spouse. It’s typically very difficult to prove undue hardship because it’s viewed as unfair for one spouse to pay less than the Guideline requirement of support.

In Kelly v. Kelly, 2011 BCCA 173, the judge made it clear that future courts must very carefully exercise their discretion to order a different amount of support (para. 35). The objectives of the Guidelines should not be circumvented; predictability and consistency in support obligations are key components of our family justice system.

If you have any questions, please call Heath Law LLP to book a consultation.

While will-makers have flexibility regarding how they dispose of their assets upon death, if they fail to adequately provide for a surviving spouse or child, their will may be varied by the Court. Section 60 of the Wills, Estates and Succession Act of British Columbia authorizes a court to order compensation that it finds adequate, just, and equitable, out of the will-maker’s estate. Only spouses and children of the testator may seek a variation and must commence an action within 180 days from the Grant of Probate. Spouses include common-law partners, with whom the will-maker was in a marriage-like relationship for at least two years. Case law has excluded stepchildren not adopted by the will-maker and birth-children adopted by third parties from being proper applicants of a will variation claim.

The seminal case regarding wills variation is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (“Tataryn”), where the Court held that a will-maker must meet both their legal and moral obligations to surviving children and spouses. The legal obligations are those which would have been imposed if property division and support were considered during the will-maker’s lifetime. Moral obligations represent society’s reasonable expectations of what should be done in the circumstances and are linked to community standards. While the Court in Clucas v. Royal Trust Corporation of Canada, 1999 CanLII 5519 (BC SC) held the will-maker’s autonomy should only be interfered with to the extent statute requires, there are some factors which often lead to variation, even in the situation of adult children who are financially independent.

The standard of living which the will-maker allowed a Plaintiff to become accustomed to will influence their level of moral obligation. In Wilson v. Lougheed, 2010 BCSC 1868, the Court considered the large size of the estate (nearly $20 million), the daughter’s current financial circumstances, and how the will-maker had historically treated her very generously when deciding to vary the will. While there is a general principle that Plaintiffs should continue to be maintained in a manner which they’ve become accustomed to, it is balanced against the estate’s ability to meet competing claims. Adult children who have financially contributed to their parents’ estates, but who are then not adequately provided for in the will are often successful under wills variations claims. This was seen in Wilcox v. Wilcox, 2000 BCCA 491, where the Court varied a mother’s will in favor of the daughter who’d made contributions to the financial purchase and running of the mother’s house. The years which the daughter had cohabitated with her mother, and the mother’s promise that the daughter would inherit the house portion of the estate also had weight in court.

The case law regarding when will-makers can limit or disinherit is ever-evolving and hinges around many factors. Will-makers’ wishes to limit inheritance may come into conflict with the moral obligations set out in Tataryn, specifically when a will-maker’s reasons might not be sufficient under community standards of what a judicious parent would have done. This was seen in Lamperstorfer v. Lamperstorfer Estate, 2018 BCSC 89, where the Court held that the will-maker’s mental health challenges and reclusiveness from society prevented him from meeting his moral obligation to his sons. Absent reasons otherwise, there’s an expectation that adult children will share equally in their parents’ estate, as seen in Laing v. Jarvis Estate, 2011 BCSC 1082. Yet reasons can be various, and the Court is hesitant to interfere with a will-maker’s wishes so long as they were made with a sound mind. In particular, Williams v. Williams Estate, 2018 BCSC 711, where a father arranged his affairs to leave all but approximately $5,000 of his estate to his favorite son, Brent, to the detriment of the other son, Ron. The will-maker had a much stronger relationship with Brent, and Brent also had dependants to support. Further, the will-maker had entirely lost contact with Ron for several years. Despite how the prevailing son Brent was financially stable before his father’s passing, and how the financial outcome was unequal, the Court refused to vary the will.