New Article that Critiques the new BC Family Law Act & PDOV/MCFD released a new three- year, $5.5 million action plan

Rachel Treloar, Susan B. Boyd. Family Law Reform in (Neoliberal) Context: British Columbia's New Family Law Act International Journal of Law, Policy and the Family 2014; doi: 10.1093/lawfam/ebt017

Retrieved from: http://lawfam.oxfordjournals.org/cgi/reprint/ebt017?ijkey=PLUhZbbmHlOyqZ8&keytype=ref

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Provincial Office of Domestic Violence has released a new three- year, $5.5 million action plan. The Action plan can be found on their website at http://www.mcf.gov.bc.ca/podv/pdf/dv_pp_booklet.pdf

N E W S R E L E A S E - Ministry of Children & Family Development

For Immediate Release

2014CFD0003

- 000134

Feb. 5, 2014

Ministry of Children and Family Development Government 

launches three-year domestic violence plan

VICTORIA – Government’s extensive consultation with anti-violence groups has culminated in

the release of the Provincial Domestic Violence Plan. The new three-year, $5.5-million Provincial 

Domestic Violence Plan – co-ordinated through the Provincial Office of Domestic Violence (PODV) 

– delivers on government’s commitment to make B.C. a safer place for women, children and anyone 

who has been affected by domestic violence.

The plan is the result of public and anti-violence stakeholder consultations and includes the creation of 

additional specialized domestic violence units, programs for Aboriginal families, direct services for perpetrators,

and improved access to services and social housing for survivors in rural and remote communities

.

The plan also includes an Aboriginal response and specific approaches to address the unique needs of immigrant 

and refugee women and women with disabilities. Government will invest in direct services to address focus areas 

that were identified during the consultation process as key priorities.

Highlights of the plan:

 $1 million to help with the start-up and implementation of 

additional specialized domestic violence units, which will 

provide direct services to high- risk families.

 $2 million to develop and deliver programs specifically for 

Aboriginal women, men and children affected by domestic 

violence– including victims and perpetrators.

 $1 million to provide support and intervention for perpetrators

to hold them accountable and support changes in behaviour and 

attitude.

 $1.5 million in direct supports to women and children for 

housing and transportation in rural and remote communities.

Precedent for Serving Court Documents via Facebook

Service of Documents by Facebook?

Gregory, J. (2014). 

An article in this week’s Law Times notes another court decision, this time in Ontario, approving substitute service by Facebook. In other words, counsel showed the court that there was no other reasonable way of getting the documents to the party to be served, and that sending to FB was likely to reach the party.

The author says that this should be the norm.

The requirement for hand-delivered document service, while historically sensible, is somewhat archaic in this electronic age. Successful service should be all about making sure that the person is aware of the document. For those of us who are more present online than offline, receiving vital information electronically is commonplace.

Does this make sense to you? How does one make sure that a person served via Facebook (or another social medium, such as Twitter, etc) is aware of the document? Suppose the person denies having received it, later. Is independent evidence of delivery available?
 
For that matter, many people on Facebook do not have pictures on their pages. How does one know one has the right John Smith, especially if such service becomes ‘the norm rather than an exception’?

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Background & Legal case

Personal Injury Law: Service via Facebook should become the norm

Merkur, D. (2014). Law Times.

Ontario Superior Court of Justice that substituted service of a statement of claim on a defendant via Facebook was appropriate (see the unreported decision of Juzytsch v. Terlecki from the court in Barrie, Ont.). Other provincial courts have similarly allowed service via Facebook or similar Internet message board services, including in Alberta and British Columbia.

To succeed in any such motion, counsel must establish that the person’s whereabouts for personal service are unknown despite diligent investigation; the Facebook profile belongs to the person in question; and the person is an active user of Facebook such that the claim will likely come to the person’s attention.

While the case law has focused on service through Facebook, the courts could also consider substituted service through other popular social networking web sites like LinkedIn, Twitter, and Instagram.

Father ordered to pay $35,000 in ‘special costs’ due to poor conduct

Ian Mulgrew: Man’s abusive behaviour during divorce proceedings earns him steep fine

After repeated warnings to reel in the insults, father ordered to pay $35,000 in ‘special costs’

 

By Ian Mulgrew, Vancouver Sun January 19, 2014.

A father who represented himself in a custody dispute has been hammered with a $35,000 “special costs” fine for abusive behaviour during the legal battle.

In a scathing judgment against the virulence and rancour at the heart of a growing number of high-conflict family law cases, B.C. Supreme Court Justice Jeanne Watchuk lambasted the man known only by his initials — A.S.P.

She minced no words in her strident defence of civility as a necessary element of the Canadian judicial system.

The justice cited emails from the man such as — “What does a man have to do to get divorced from a wench?”

“The conduct of the father has consistently been rude, inflammatory, derisive, threatening, and disrespectful and insulting of the mother, her counsel and the court process,” said Watchuk in the stinging rebuke.

“It has not been situational or short-lived. It has been consistent over more than two years. It has included behaviour in the courtroom, and email communications to scheduling as well as communication with counsel for the mother continuing after the written submissions on costs were filed …. there is no justification for this behaviour in a court proceeding.”

This case involves a couple who married in 2007 and separated a short time later in 2009 before the birth of twins.

They have been arguing over the children since, though a divorce was granted Jan. 25, 2012.

The kids live with their mother, known in court documents as N.N.J., and her parents in Surrey; the father has a home in Surrey but is a U.K. citizen and travels frequently for business.

The legal fight lasted longer than the marriage.

The acrimonious proceedings consumed 26 days of court time: a 19-day trial, four applications heard in chambers, and two attempts by the father to reopen the trial, one requiring a five-day hearing and the second, two days.

The justice said A.S.P. has continued to threaten to report the proceedings to the media with a view to “intimidating the (mother) as well as her counsel …. has threatened to bring legal proceedings against counsel for the (mother in the United Kingdom … and) threatened to report the (mother) to foreign authorities while she is travelling with the children.”

After the recent decision, he sent me a note offering the “real story” on Watchuk. “Be patient, then,” he replied. “It was either you or The Guardian (I know the editor).”
I am still waiting.

Enormous court resources are consumed by these scorched-earth disputes and they are almost always conducted by self-represented litigants who lack self-control or objectivity.

Although Watchuk was willing to let both sides in this apocalypse cover their own legal costs, the father’s continuing belligerence overwhelmed her. She issued a “special costs” award — a punishment only imposed by a court for reprehensible conduct.

“The father does not demonstrate respect or the ability to communicate respectfully,” said Watchuk, itemizing the many requests to the man to cease his objectionable conduct and behave himself.

“The father’s communication through the mother’s counsel has been and continues to be vitriolic to the degree that it has become impossible.”

During one access meeting, the father swore at a cousin of the mother’s while holding his baby son. In an exchange with his wife’s lawyer, he made disparaging remarks about the man’s daughter and their Jewish traditions.

“The father rightly demands respect for his (Sikh) culture,” Watchuk said.

“It should go without saying that the culture and religion of all participants in the justice system are deserving of respect. The sanctity of the family of counsel is fundamental.”
In her mind, he was acting like “a malicious bully.”

The father maintained that his outrageous behaviour was the result of “unique, extended and extraordinary stress and strain, arising from a circumstance that had no end in sight,” that he had been left “in limbo for years.”

In his mind, a confluence of factors impaired every facet of his life — from his fundamental liberties, access to his children, ability to earn an income, and left him at one point without a home or furniture.

The justice had little sympathy.

“In the trial I first mentioned the necessity for respect and civility to the father,” Watchuk said.

“I then reminded him of it. I stopped the trial on at least two occasions when those instructions were wholly disregarded. I explained further that civility and respect for the mother and her counsel not only assisted the court proceedings but were fundamental to the ability of the process to achieve a result which was in the best interests of the children.”

He authored much of his own trouble, she added, and his intransigence pushed her to impose special costs.

imulgrew@vancouversun.com

© Copyright (c) The Vancouver Sun

BC's New Family Law Act: Common-law partners have more rights

Common-law partners in B.C. now have more rights than they used to

By Louise Dickson, Victoria Times Colonist, March 30, 2013.

She lived with him for eight years, raised his children, cooked and cleaned.

“She did what good wives do,” said Victoria family law expert Trudi Brown. “But at the end of the day, she wasn’t a wife. She didn’t have a job anymore and everything was in his name. She didn’t know she wasn’t protected.”

When the couple split up, the woman, who was in her mid-40s, ended up with almost nothing. Her knowledge of her rights was typical of 90 per cent of the common-law couples Brown used to see in her family law practice.

“They were horrified to find out that they didn’t actually get the same [treatment] as married people,” Brown said. “I’ve been trying for years to get people to make agreements before they start living together. But lust and love get in the way. Nobody thinks this will happen to them.”

B.C.’s Family Law Act, which came into effect March 18, changed all that.

The new legislation gives couples who have lived together in a marriage-like relationship for two years or more the same rights and obligations as married couples. It’s designed to address unfairness in dividing property when common-law relationships end, said Brown, editor of The British Columbia Family Law Practice.

Justice Minister and Attorney General Shirley Bond said the act replaces legislation from the 1970's and addresses the needs of modern B.C. families as well as shifts in societal norms.

“It’s about providing fair rules for couples who split up and ensuring that those rules are crystal-clear at the onset of the relationship,” Bond wrote in a letter to the Times Colonist.

Under the new act, common-law couples keep the property they bring into the relationship. Gifts, inheritances, settlements and awards of damages are excluded and not divided upon separation. Only property and debt that a couple accrues during the relationship is divided.

“If you bring in $100,000, and he brings in $500,000, and at the end you have $1 million, he gets his $500,000 and you get your $100,000 and you split the increase,” Brown said. “Most people thinks that’s fair.”

The new act means common-law partners have some rights that they didn’t have before, she said. “They haven’t lost anything and they haven’t become married — because that’s a different thing. That’s a choice. It does say if the couple breaks up and can’t resolve what they need to do when they break up, then some things come into play that will help.”

Media coverage of the act has focused on young couples, content to live together, who resent being placed in the same legal situation as married couples.

But common-law couples can opt out of the property division rules if they make their own agreement. “What they have to do is write it out and both partners have to sign it in front of an independent person,” Brown said.

For the agreement to be valid, both partners have to provide full disclosure of their assets and liabilities.

Brown says the questions to ask are: What do both of you expect? Who’s paying for what? Is there an intention to have children? If so, who is taking time off for them? If you separate after you have children, what’s going to happen to the person who lost out because of their job?

Because couples may not have an answer for all these questions, there should be a provision to look at the agreement every few years or if they have children, Brown said. “Things change pretty dramatically, so you want to be able to say to the court — if it ever asks — ‘We looked at it and we were happy with it and we don’t want to change it.’ ”

Generally, people will see a lawyer for prenuptial agreements for two reasons: They’ve been divorced before, or their parents make them because they will receive a big inheritance. And it’s always a good idea to consult a lawyer. It’s not expensive and could prevent big legal bills, Brown said.

She predicts the courts will still have some big issues to deal with. For example, if someone brought a $500,000 house into the relationship years ago, and the house isn’t worth that today, how will the court deal with that?

“There are going to be some interesting issues we are going to have to worry about.”

© Copyright (c) The Victoria Times Colonist

Original source article: Common-law partners in B.C. now have more rights than they used to

Family Law Costs: Divorce vs. Mediation

The Cost Of Litigation Versus Mediation In Family Law 

Diane L. Danois, J.D., 12/27/2012 , HuffPost.

Do-it-yourself divorces and pro se (representing yourself) litigants are on the rise, especially as the economy continues to put the squeeze on families financially and people simply cannot afford to hire lawyers. Remember: You didn't need a lawyer to get married, and you don't need one to get divorced.

Or perhaps you are leaning towards litigation because you believe that your opponent will be forced to pay your legal fees. Maybe your original agreement actually articulates that the party who breaches an agreement will be forced to pay the non-breaching party's attorneys' legal fees and court costs. Perhaps your attorney has even told you that your attorneys' fees will be paid for by the opposing party.

Here's the reality: Courts routinely disregard the language in these prior agreements, instead focusing solely on "need and ability to pay." If there is a need and the opposing party has an ability to pay, attorneys' fees may be awarded. What this means, however, is that additional discovery will have to be issued seeking financial information of the parties ($$$), subpoenas will be issued seeking financial and employment documentation ($$$), motions will be filed objecting to the subpoenas or for failure to timely comply ($$$$), hearings will be scheduled ($$$$$), and in the end, the legal fees have dramatically increased over arguing over attorneys' legal fees, and the underlying dispute hasn't even been addressed! This chapter of the litigation process can easily run up an additional $5,000.00. In the end, the court will typically award only partial fees, meaning that you are still responsible for the balance. Was it worth it?

The costs involved in mediating versus litigating family law disputes are dramatic. Of course, the complexities of a particular family law case must be factored into any formula, however, a typical case negotiated using an alternative dispute resolution method such as mediation may range in cost from $500.00-$3,000.00. The same family law case may cost anywhere from $15,000.00-$35,000.00+ to litigate. Consider the following:

Costs to Mediate:

Initial 2-hour consultation: $250.00 - $500.00
Follow up meeting: 4 hours at $300.00/hour, or $1,200.00
Preparation of Mediated Settlement Agreement: $500.00
Preparation of additional documents, such as Parenting Plan, Child Support Worksheet, and/or Dissolution filings (if necessary): $500.00

APPROXIMATE TOTAL COST OF MEDIATION*: $500.00-$2,500.00

Costs to Litigate:

Initial Consultation: $250.00-$500.00/hour
Retainer: $2,500.00-$5,000.00
Filing Initial Pleadings (Summons and Initial Petition): $1,200.00
Responding to Answer and/or Counter Petition: $1,000.00
Serving Discovery: $500.00
Responding to Discovery: $750.00
Preparing Financial Affidavit and Mandatory Disclosure Compliance: $1,800.00
Preparing Motions: $750.00
Preparing Motion for Attorneys' Fees: $750.00
Responding to Motions: $750.00
Hiring Experts: $2,000.00
Hearings/Court Appearances: $4,500.00
Mediation (Court-Ordered): $1,200.00
Co-Parenting Classes and Preparation of Parenting Plan: $500.00
Trial: $7,500.00-$10,000.00
Appeal: $5,000.00

APPROXIMATE TOTAL COST OF LITIGATION*: $32,700.00+

Mediation isn't a "let's hold hands and sing Kumbaya" approach to dispute resolution. However, mediation does allow the parties to control their own destiny and consider their unique issues to find a resolution that is mutually agreeable by the parties -- at a reasonable cost. The sheer volume of family law disputes clogging the court systems, in contrast, forces a tendency to approach these cases in a "cookie cutter" fashion, often resulting in resolutions not particularly agreeable to either party -- at an expensive and unreasonable cost.

*These are approximations and are contingent upon complexities of each individual case and time involved with the parties.

Provincial Office of Domestic Violence Public Consultation Questionnaire

Provincial Office of Domestic Violence (PODV) is conducting a Public Consultation Questionnaire until February 18^th

Find that consultation here: http://www.mcf.gov.bc.ca/podv/questionnaire.asp 

Provincial Office of Domestic Violence 

Domestic violence and abuse do not discriminate, but they can escalate. Violent acts can be physical, emotional, sexual, or verbal and are often used as weapons of control and intimidation. Victims may suffer in silence and could be family members, friends or neighbours. If you or somebody you know is being abused, help is available.

In March 2012, British Columbia established the Provincial Office of Domestic Violence. The office is the permanent lead for the B.C. government in coordinating and strengthening services for children and families affected by domestic violence.

The office is accountable for ensuring all provincial policies, programs and services related to domestic violence are effective and delivered in a comprehensive and unified way across government. It is responsible for monitoring, evaluating and regularly reporting progress as well as consultation with stakeholders to support a coordinated, systemic approach to domestic violence.

The office is part of the Ministry of Children and Family Development and works in collaboration with other provincial ministries, law enforcement agencies, and community stakeholders to ensure the effective delivery and coordination of domestic violence services in communities across the province.

Family Law Act (FLA), Regulations & Resources

On March 18, 2013 the new Family Law Act (FLA) will come into full force. Resources and training are being offered by a variety of sources. 

The Family Law Act (FLA)

The Family Law Act Explained

Part 1 - Interpretation 

Part 2 – Resolution of Family Law Disputes 

Part 3 - Parentage 

Part 4 – Care and Time with Children 

Part 5 - Property 

Part 6 – Pension Division 

Part 7 – Child and Spousal Support 

Part 8 - Children’s Property 

Part 9 - Protection from Family Violence 

Part 10 – Court Processes 

Part 11 - Search Officers 

Part 12 – Regulations  

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Guide to the New BC Family Law Act

Legal Services Society.

This guide introduces the new act, which comes into effect on March 18, 2013. It includes information about:

• family law language changes,
• making agreements to stay out of court,
• dispute resolution,
• parenting arrangements,
• child and spousal support,
• dividing property and debt,
• family law protection orders, and
• moving with children.

It also contains a glossary of definitions for many of the new and changed family law terms and a useful resources section.

Coming soon in simplified and traditional Chinese, French (online only), Punjabi, and Spanish.

Order your print copy now or download the guide from our publications page.

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Dye and Durham - Information from a webinar

1) Paramount Considerations/Goals in Drafting Legislation & Changes Already In Place;
2) Family Dispute Resolution;
3) “Best Interests of the Child” as they relate to Mobility (Relocation) Rights;
4) Family Violence;
5) Property Division “Significantly Unfair”;
6) Support;
7) Procedural Rule/Form Changes; and
8) Appearance Tips.

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Family Law Act: New Resource for Justice System Workers and Advocates 
J.P. Boyd

I've put together an overview (PDF) of the new Family Law Act for people who work in the justice system and legal advocates.

The current version is dated 7 November 2012 (previous version - 3 November 2012); please download the updated document (PDF).

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The new Family Law Act regulations

Family Law Act Regulations Explained

Part 1 - Interpretation 

Part 2 – Family Justice Counsellors 

Part 3 -Family Dispute Resolution Professionals 

Part 4 – Child Support Guidelines 

Part 5 - Child Support Recalculation 

Part 6 – Prescribed information, forms and fees

The Family Law Act Pension regulations set out the requirements for dividing a pensions under Part 6 of the Act, including the forms a spouse must use, the pension plan administrators’ duties to provide information to the member and spouse, and the formulas to be used to calculate a spouse’s share of the member’s pension. 

These regulations will take effect on March 18, 2013, the same day as the new Family Law Act, with the exception of the training and standards provisions, which come into force on January 1, 2014. The Family Law Act regulations will replace all Family Relations Act regulations.