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Vancouver and Edmonton Family Law Blog

The Importance of Pleading Certificates of Pending Litigation

In the recently released decision of Zwiers v. Thompson, the BC Supreme Court looked at the priority ranking of charges registered against the family residence. There were three charges filed: the wife filed a certificate of pending litigation in May 2010, the Family Maintenance Enforcement Program registered a charge in June 2011, and the husband's lawyer filed a charge for his fees in July 2011. The husband's share of the sale proceeds was held in trust until the determination of these charges was made. Subsequent to the sale of the family residence, the wife claimed repayment from the husband's share of the net sale proceeds for child support arrears, mortgage payments, property taxes, utility payments and renovation expenses.

Views of the Child Reports

We are often approached by parents who tell us that they want the court to consider their child's wishes in the determination of their family law matter.  It is possible for the court to  take this into consideration through a "Views of the Child Report" ("VOCR") prepared pursuant to section 15 of the Family Relations Act.  A VOCR is an assessment prepared for the court for regarding the child's views on particular issues.   The child's preferred school, residence or parenting  arrangement might be issues appropriate for such an assessment.   The report can be made by either a mental health professional such as a psychologist or a psychiatrist or by a lay person such as a family justice counselor trained to speak with children on such issues. The VOCR usually involves one  interview with each of the child's parents individually, and then two separate interviews with the child on his or her own .  One of the reasons that the child is interviewed twice is to ensure neutrality - the interviews are arranged such that each parent brings the child to one of the interviews.  Each assessor has his or her own assessment style and procedure and the costs can vary dramatically depending on what type of assessor you retain and how in-depth the report is. The report will generally not comment on the Child's views.  While other types of reports, for example a Custody and Access report, might conclude with the assessor's opinions and recommendations, a VOCR will simply endeavour to accurately report the wishes and opinions of the subject child. Things to keep in mind about a Views of the Child Report:

The Court as Custodial Parent?

What rights does a court have over child related decisions when an interim custodial parent has been named?  This question, in the context of the custodial parent’s decision to move out of the country with the child, was examined by the BC Court of Appeal in Johnson v. Jessel, 2012 BCCA 393.In the context of a Hague Convention application (an application to the court to have a child returned after having been taken out of the court’s jurisdiction), the court had to deal with the questions of whether it still had jurisdiction over the issue.  The argument raised was that, because the child was now resident in another country, that new country had the power to determine the child’s residency.  The BC Court of Appeal rejected that proposition.  It took the position that “… when custody is a live issue, and a court awards custody on an interim basis, the court does retain custody rights under the Convention …”. [para.49]  Because of this, the court went on, it is not necessary for a court to order a non-removal clause after making an interim custody order:  the fact that the court retains some degree of custody under the Hague Convention, “…removal of the child is unlawful within the meaning of the Convention…” [para.50]In other words, an interim custodial parent does not have unfettered discretion to move the child wherever he or she chooses.  The BC courts, having taken jurisdiction, will retain that jurisdiction until a final determination.The Vancouver divorce lawyers at Henderson Heinrichs have the knowledge and experience to deal with inter-jurisdictional issues, including child abduction.

Top 5 Suggestions For Those Who Want to Keep Lawyer's Fees To A Minimum

Divorce and Family law court actions can be expensive.  At Henderson Heinrichs, our Vancouver divorce lawyers and family lawyers give you the options you need to lower your account.  Here are some tips to making the best use of your money:

Halloween Access

Halloween is one of those quasi-holidays which create unique difficulties and present unique opportunities when it comes to arranging access.  Because the day is premised on a child-based activity,  parents  should decide beforehand where the kids will be, who they will be trick-or-treating with and whether one or both parents will be involved.  The family and divorce law lawyers at Henderson Heinrichs are able to help you work through holiday access issues, both for Halloween and for the remainder of the year. I recommend the article at  divorced kids halloween scary as a good, common sense review of the issue.

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


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