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Vancouver and Edmonton Family Law Blog

Completion of Registration of Live Birth

The Vital Statistics Act, R.S.B.C. 1996, C.479 (the “Act”) was amended on October 1, 2002 and again in 2004.  Prior to the amendments to the Act, the mother had the sole power upon the birth of the child to acknowledge the father on the registration of live birth.  If the father was not acknowledged, he had no right to have his paternity information entered on the child’s registration of live birth or to take part in choosing the child’s surname.As a result of the 2002 and 2004 amendments to the Act, the legislation was amended to allow a court to consider an application by the birth father to change the child’s surname to include his surname.Section 3(6)(c) of the Act states that “if a statement completed by only one parent of the child or by a person who is not the child’s parent is registered, the chief executive officer must alter the registration of birth on application of any of the following persons:(d) the child's mother or father, if the application is accompanied by a copy of an order of the court declaring the child's paternity, unless the court orders that the father's particulars are not to be included on the child's registration of birth.”Section 4 (1) (c) of the Act states that the surname of a child must be registered as follows:“(c) if both parents complete the statement under section 3, but do not agree on the child's surname, the surname must be(i)  the parents' surname, if they have the same surname, or(ii)  a surname consisting of both parents' surnames hyphenated or combined in alphabetical order, if they have different surnames.”It is now open to the court by virtue of Section 4.1 of the Act that upon an order declaring a child’s parentage that the registration of the child’s name can be changed.  If an order is made in respect of a child’s surname, the court must order the child’s surname to be:(a) the surname of either parent, or(b) a surname consisting of both parents' surnames hyphenated or combined in alphabetical order, in which case, section 4 (2) and (3) applies.The legislation now provided an avenue for fathers who have been left off of the registration or the process of naming the child, to have a remedy in law in changing the surname.   It should be noted however, that the court will look at the best interests of the child in determining whether the name change should occur.

Financial Statement Assumptions

Some thoughts about Financial Statements:  The Form 89 financial statement is divided into major sections – income, expenses and property.  Generally, income and property pose few conceptual problems.  Parties might disagree with values of assets or with characterization of income, but there little room for assumptions (ie, you would not include a Ferrari in section 2 of Part 3 (Vehicles) premised on “IF I had a Ferrari, THEN I would have a Ferrari”).The same cannot be said for the expense section of the Form 89, which is rife with assumptions.  It is not clear on the face of the document what, exactly, is called for.  Is one being asked to say what one’s expenses have been for the past year?  What one expects them to be in the coming year?  What they will be if one gets what one is proposing that the court order, or what one will be paying if the other party is successful?  Does one calculate expenses on the most one believes one should be spending or the least?   The answer to all of these questions is, unfortunately, yes.Because there is so much grey in the Financial Statement, it is important that one clarifies for the court any assumptions and decisions that you make.  If one is filling out the document based upon what one expects to pay if one receives what one is seeking, that assumption should be set out in affidavit material and brought to the attention of any judge hearing a related matter.  Clarifying affidavits are very helpful for the court and helps them to see exactly what logic lies behind the income and expense calculations you or your counsel may be promoting.

Recent Cases on Costs

Some interesting cases recently reported which underscore both the discretion which a court has over awarding costs, and the confusion as to what factors will affect the court’s decision.  In Robyrts v. Roberts, 2009 BCCA 574 , the Court of Appeal confirmed that, even in the face of an offer to settle which would have provided a better result, the trial or chambers judge can deny any award of costs or double costs.  In C. (S.J.) v. A. (S.C.), 2010 BCCA 31, 2010 CarswellBC 135  British Columbia Court of Appeal, 2010, this issue of the court’s flexibility was canvassed again.  In this case, double costs was not awarded but the court paid attention to several factors in exercising its discretion, including the conduct of the parties and the interests of children involved.  It is clear that an Offer to Settle does not guarantee costs, let alone double costs.  It is equally clear, however, that a successful Offer will not negatively affect the court’s discretion to award those costs.

Mobility Law Update

The BC Court of Appeal recently released a decision which clarifies the decision making process the Court will use where one parent wants to move to another city, province, or country with the children and the other parent wants to stay where they are living and keep the children.   The test in these situations is what is in the "best interests" of the children. In S.S.L. v. J.W.W., 2010 BCCA 55, an appeal from S.S.L. v. J.W.W., 2009 BCSC 924, the Court of Appeal said the Judges should consider four possible scenarios and then decide which one will be in the best interests of the children.  The four possible scenarios are:

Notices to Admit

In family law, there are several methods to obtain information and disclosure from the opposing party.  Questions can be posed by way of interrogatories (ie. written requests for information) or in Examinations for Discovery (meetings during which the person being examined is required to answer questions relating to the matters in question).  Another method through which to obtain information from a party is a Notice to Admit.  A Notice to Admit is a document which lets a party seek the other party's admission as to the truth of facts alleged in the Notice or the authenticity of documents specified in the Notice. When you receive a Notice to Admit, you have two weeks to respond, either by: 1)            admitting the truth or authenticity requested; 2)            denying the truth or authenticity requested; 3)            describing in detail the reasons why the admission cannot be made; or, 4)            stating that you refuse to admit on the grounds of privilege or irrelevancy, or that the request is otherwise improper, and describes in detail the reasons for the refusal. If you do not respond to the Notice to Admit in the allotted two week period, you are deemed to have admitted everything that was in that Notice.  This is very effective and requires that, if you receive a Notice to Admit, you carefully and thoroughly review the facts and documents set out, and that you promptly and accurately respond to that Notice.

Reassessment of Trial Decisions

The court in R.A.C. v. V.L.C., 2009 BCSC 1417 recently reviewed the law regarding when it can and should reconsider a trial decision.  Under normal circumstances, a trial decision is geared towards ending the parties’ disputes and deciding the issues on a final basis.  There are, however, occasions where the Judge’s trial decision requires reassessment based upon facts which were not available to the parties during the trial.  This can only happen if a court order has not yet been entered.  However, in that event, the court has an unfettered discretion to reconsider its decision but should do so exceedingly sparingly.  Further, the court in R.A.C. acknowledged that the underlying rationale of the court’s discretion is prevent a miscarriage of justice from occurring.A reassessment is a very rare occurrence and all efforts should be made to ensure that the issues and evidence are properly canvassed at trial.

Understand your legal options. Make informed decisions. Contact the family law lawyers of Henderson Heinrichs LLP


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