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Vancouver and Edmonton Family Law Blog

Agreements are meant to be followed

At Henderson Heinrichs, we regularly negotiate and conclude separation agreements for our clients.  Parties cannot take the provisions of these agreements lightly.  When you reach an agreement with your ex-spouse, you had best stick to it.  That’s what the court concluded in the recent Supreme Court of British Columbia case of Owen v. Owen, 2011 BCSC 1284.In Owen, the court was faced with non-payment of spousal support by a wealthy husband, in contravention of the terms of a separation agreement.  The court found that, in addition to losing the money itself, the wife lost certainty, security, and the ability to budget, invest and control her own financial resource, all of which she had bargained for in the agreement.Because of this, the court agreed that the Agreement had been repudiated by the husband, and on the basis of the action brought forward, that the wife accepted that repudiation.  The result was stark:  the husband was required to pay back the arrears that had accrued under the terms of the agreement to the date the repudiation was accepted.  Further, the wife was freed from her obligations under the agreement and was able to once again pursue a reapportionment of the very substantial family assets, something that she had given up under the agreed upon terms.  Finally, as the agreement was no longer in effect, the husband was once again required to pay a higher, interim, spousal support sum which had been ordered prior to the Agreement being reached.The wife, of course, did not have to accept the repudiation, and she could have sought a far more common remedy; namely, that the agreement be enforced.  But the choice was hers, and it serves as a valuable reminder that the person breaching the agreement will rarely receive benefit for that breach from the court.

What does it take to Separate?

At Henderson Heinrichs, we are often asked to seek a determination that the spouses in a marriage have no reasonable prospect of reconciliation.  Normally, this is not a particularly contentious issue.  However, there are circumstances in which a declaration such as this have far-reaching consequences. In Wolfman-Stotland v. Stotland, 2011 BCCA 175, (CanLII) the court grappled with the question of a spouse's capacity to separate.  In this case, the claimant wife and the respondent husband were  92 and 93 years old respectively, and the wife applied for a  s.57 declaration that there was no reasonable prospect of reconciliation.  In opposing that application, the Husband sought and received an order that a doctor provide an opinion as to the Wife's capacity to make the  - though the doctor found that the wife had the capacity to instruct counsel regarding the financial aspects of the divorce claimed, she "did not have the capacity to form the intention to live separate and apart from her husband" [at paragraph 14].  The Chambers judge defined the relevant issue as whether the wife had the ability to both manage her affairs and instruct counsel.  The Court found that she did not. The Court of Appeal disagreed.  Upon re-examination of the issue, the Appeal Court determined there should not have been a dual test.  The ability to manage ones affairs was determined to be a higher capacity than the one needed to instruct counsel and the court overturned the Chambers Judge's decision. The Husband's application to appeal to the Supreme Court of Canada was dismissed, and the test for the capacity necessary to separate therefore remains a very basic one.

What If No One Follows An Order?

In the recently decided case of Newton v. Luettger, 2011 BCSC 995, the court made an observation which, while simple, is also far reaching in its effects.  The case involved a 2005 trial custody order which provided that the parties would share roughly equal time with their two children.  The parties concurred at the hearing  that the equal division of care never occurred and that the mother regularly had the children in her care for greater than 60% of the time.  The mother sought a variation of the trial custody order, relying on the difference between the order and the actual care circumstances as a material change in circumstances. Mr. Justice R.D. Wilson stated found that, [9]     The argument advanced by the Claimant is based on the proposition that the failure to comply with the terms of an order is equivalent to "a change in the condition, means, needs or other circumstances of the child of the marriage...". To me, that is a novel proposition. No authority was cited in support of it. Absent binding authority, it is not a proposition which commends itself to me.

Document Disclosure

During the course of your matrimonial file you will be asked by your lawyer to produce a number of documents.  These will include personal documents relating to your finances, including but not limited to bank account statements, credit card statements and other what you could perceive as personal material that you may or may not want your estranged spouse to have access to.  In dealing with support issues, document disclosure with respect to income and expenses becomes relevant.  Often, innocent omissions with respect to the disclosure of documents can be used by the other side's lawyer as fodder to allege that you have failed to disclose or are guilty of blameworthy conduct giving rise to retroactive adjustments and corrections with respect to child or spousal support.  These are all things that you want to avoid like the plague.

Interim Custody and Status Quo

What happens on interim custody applications when there is no existing court order?  In granting an interim order for custody, the court is obliged to consider the status quo.  Preservation of the status quo pending trial is generally considered to be in the best interests of the child unless there is a compelling reason to change the existing custodial situation.  In Leung v. Leung, [1998] B.C.J. No. 2614 (BCCA), Justice McFarlane stated that in interim custody matters, the court should maintain the status quo in the absence of reasons to the contrary. In general, the party seeking to alter a child’s status quo must present evidence to show that the status quo is unsatisfactory and not in the best interests of the child and therefore should be changed.In Prost v. Prost 1990 CanLII 907 (B.C.C.A.), [1990] 30 R.F.L. (3d) 80, the court held that the governing principle is that the status quo is to be preserved and there is to be “minimum change, uprooting, or disruption at the initial or interim stage prior to trial”.  This overarching principle is that the status quo should change only when there is very “cogent evidence” to suggest that the status quo should not be maintained.  The court went on to say that courts should be reluctant to change the status quo when children are happy in a stable and secure setting.  The need of young children to feel secure in every way cannot be overemphasized.The courts have held that the status quo arrangement becomes increasingly more significant in determining what is in the best interests of a child the longer the arrangement has been in place. This is especially true where the status quo has created a stable and secure environment for a child and there is no evidence to suggest that the child is not doing well in that environment.
N. Ahluwalia

Social Media in Family Law or Divorce Actions

Social media – Facebook, Twitter, LinkedIn and the like - is not going anywhere.  It is now firmly rooted as an accepted and, for some, indispensible part of our interconnections with others.  The mechanism will evolve (or devolve, depending on your view) and the companies may change, but for the foreseeable future at least, we will continue to post and tweet and poke.In a family law context, a client’s social media trail is generally an anathema.  It is a relatively permanent and immutable record, and when someone is going through the difficulties and confusion of a breakup, that record is rarely one which reflects well.  Posts about an ex, about children or about the situation in general are all potentially compellable as evidence.  Even if the client him or herself is maintaining absolute control over his or her posts, that control does not regulate the posts of friends and well-wishers.In almost every case, the best course is the one which is becoming harder and harder:  abstain from all social media when you are dealing with a family law dispute or divorce.  It is inconvenient, annoying and, really, not fun at all.  But it generally is for the best

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