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Vancouver and Edmonton Family Law Blog

Review Hearing vs. Variation of an Order for support

The BC Court of Appeal just released a decision called Domirti v. Domirti, 2010 BCCA 472, which considered an appeal by the husband from an Order that he pay indefinite spousal support to his wife. The basis on which the husband made his appeal was the manner in which the judge treated the application at the Supreme Court level; that is, that the judge made a mistake in treating his application as a variance instead of a review. The Court of Appeal agreed with him and reversed the judge's order. Previously, the parties have been separated since 1994. The initial child and spousal support order was made in 1996, and varied in 2004. The 2004 Order specified that, anytime after a year had passed, either party could seek a review hearing on the issue of spousal maintenance. The husband sought that review in 2005, and then again in 2009 when it was alleged the youngest child of the parties was no longer a child of the marriage. The husband sought to terminate spousal support at that point.

Court Services Online

In family law, the question of someone's background is sometime a relevant factor.  The Ministry of the Attorney General has provided, through its Court Services Online website, a valuable starting point for an investigation of a person's criminal justice history.  Though limited to British Columbia and to provincial court records the site provides information which would otherwise take time and resources to uncover.

Joining Provincial and Supreme Court actions

In a situation where two different family law actions have been commenced dealing with the same parties - one in B.C. Provincial Court and the other in the Supreme Court of British Columbia - it is often the case that a party may wish the matters to be unified and joined in a single court.  A shift from one court to another can have financial and strategic ramifications and the question is therefore raised, how can this be accomplished?  In the recent B.C. Provincial Court of B.C. case of  R.(J.A.) v. K.(K.M.), 2010 CarswellBC 1629, 2010 BCPC 98, Judge E. Rae clarified that the Provincial Court has no power to transfer an action to the Supreme Court.  She succinctly noted that "The Provincial Court is a Court of statutory jurisdiction, and any authority to transfer the file to the Supreme Court must come from a statute or a rule" (paragraph 5).  She then went on to find that there was not statutory jurisdiction or legislation permitting the court to enable that transfer and that, "It may be open to the Supreme Court to assume jurisdiction over the matter, given that they have inherent jurisdiction and parens patriae jurisdiction, but that is a decision that must be made by the Supreme Court." (paragraph 12).  In short, while the actions may be transfered and joined, the ruling has to come from the Supreme rather than from the Provincial Court.

Expert Report Critiques

According to a new B.C. Supreme Court decision, expert critiques and reviews of Section 15 Custody and Access reports should not be admitted as evidence at trial, nor should the testimony of that expert him or herself.   In Hejzlar v. Mitchell-Hejzlar, 2010 BCSC 1139, Mr. Justice Burnyeat questioned, "... whether it was appropriate to have the critique by [the expert] introduced into evidence", and asked whether, " ... the opinion of [that expert] relevant to the issues which were before the Court?" (at paragraph 4).At first blush, it might be difficult to understand why a critique of  a section 15 report would not be relevant to issues before the court; namely, the best interests of the child involved. , The court ins Hajzlar, however, astutely pointed out that a critique of a Section 15 Report does not add any evidence on the questions of the children's interests.   In critiquing reports, a psychologist , "(a) ... must limit comments to methods and procedures; (b) ... must not state any conclusions unless they have done their own individual assessments; and (c) ... must restrict themselves to comments as to their sufficiency and accuracy" (at paragraph 11).  A critique which does not include any independent assessment  gives evidence solely as to the validity or lack thereof of the original report.  That validity issue is not before the courts.  The Judge determined that the proper way to call the validity and reliability of  a Section 15 report into question would be to cross-examine the author of that section 15 report.  He reflected that an expert critique might be an invaluable resource in preparing for such a cross examination.Mr. Justice Burnyeat did leave open the option of a party commissioning a second custody and access report.  If such a report were prepared, it would certainly bear on the issues before the court and we suggest would likely be admissible.

Divorce Ads

I came across an article in the Walrus last week regarding a Chicago law firm which put out a rather risqué advertisement trumpeting, "Life's short.  Get a divorce".  This got me thinking about what, as family lawyers, the line is between our facilitating the breakdown of a relationship and our advocating that breakdown.  The advertisement perpetuates the stereotypical "ambulance chaser" image of lawyers, but in this case the chaser actually advocates the accident.   The danger of glamourizing that which is, for virtually everybody involved, a serious and difficult undertaking ignores the complex and often destructive ripples left by that breakdown, not only on the parties, but on the children of the parties.  Divorce is not fun; it is not trivial, and to treat it in a flippant manner disrespects those who treat their relationships seriously.

Court Scheduling

I fully understand the multitude of factors involved in scheduling appearances before Masters and Judges in the Supreme Court.  Cases settle, lawyers argue beyond their predicted times, people arrive with ex parte and short leave applications.  But is there nothing that can be done to improve the system we have?  Clerks are in a better position than virtually anyone else to make educated  predictions as to the length of the cases they are dealing with and could inform the  court registry on a regular basis.   A system of priority could be issued which would at least provide clients with a marginal amount of information on which to base a decision as to whether or not to seek an adjournment.   The current system of having lawyers seated, uninformed, around the court registry, waiting, does not seem to be particularly efficient.

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