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Vancouver and Edmonton Family Law Blog

Maintenance on the Death of a Party

When a party to litigation between spouses passes away, a question can arise as to the status of litigation regarding ongoing child and spousal maintenance.  In Crain v. Crain 1996 CarswellBC 1174, the Supreme Court dealt with the issue by finding that maintenance is a personal right that abates upon the death of either the party paying or the party receiving that maintenance.  In other words, under normal circumstances, if one party dies, maintenance stops.But what happens if one of the parties was pursuing an application to cancel or reduce arrears of maintenance?  The court found (at para. 16) that an application to vary or cancel arrears, "... must be made by a spouse or former spouse and those terms do not extend to a corpse, an estate, or a personal representative."  Because of this, any application to change maintenance owing also abates upon the death of either party.  Which means that if you intend on applying to varying or cancel arrears, it's best to do it while you're alive.

Following the Guidelines

The BC Court of Appeal has once again confirmed how inadvisable it is to ignore the Advisory Spousal Support Guidelines.  While being very careful not to elevate them from their guidelines,  Mme. Justice Smith in her reasons in Domirti v. Domirti, 2010 BCCA 472, an appeal from a trial court spousal support review application, quoted  Redpath v. Redpath, 2006 BCCA 338, 62 B.C.L.R. (4th) 233 in finding that that, "...while SSAG is not to be applied as a matter of law in determining the quantum of spousal support, in circumstances where it is appropriate to consider the application of SSAG an award that falls substantially outside the SSAG ranges may permit appellate intervention".  In Domirti, the trial court had ordered a quantum of spousal support in line with the guidelines without accepting the matching suggested duration.

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.

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


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