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Vancouver and Edmonton Family Law Blog

Dividing the Grape Juice

You like wine. Who doesn't? You've got a nice collection going, cellared under pristine conditions, perfectly cooled and humidified. And now you and your spouse are splitting up. Wither the wine? How do the courts deal with something that is equal parts collection and food? While meant to be drunk (clearly), bottles of sought-after wine can command remarkable prices. The values of those bottles can and do constantly shift based upon the providence of the wine (ie. how it has been stored) its age and popularity. How then can a court value a collection and divide it up? The British Columbia courts have taken more than one position on this issue. In Forzley v. Forzley, 1998 CanLII 5511 (BC S.C.), the court roughly estimated the value of the wine collection and reapportioned other assets to compensate for the parties' relative interests.

This Post is not Privileged

Privileged communication is defined in the  in the law.com dictionary as "statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court".  It has been established that the phrase "Without Prejudice", written at the head of correspondence identifies it as being privileged.  It is a far too little known fact, however, that the simple act of typing the words "Without Prejudice" at the top of a letter does not endow it with the magical power of invisibility.  You will, for example, inevitably be disappointed if you  write those words at the head of an insulting letter to your erstwhile spouse expecting that letter to be omitted from evidence.  A document is not privileged because you label it as such.  Rather, the privilege relates to the character of the document.  This means that not all letters labelled "Without Prejudice" are as advertised.  It also means that some letters are privileged without being branded.

Anonymizing Orders and Pleadings

By its nature, the court system is intended to be open to the public, with information about litigants available to everyone. The court is presumed to be open to the public. However, sometimes clients wish a little more privacy for any number of reasons and ask how that might be accomplished. The most common way to maintain some privacy in a court action is to amend the style of cause (Name vs. Name) by substituting the parties' initials instead of their full names. Unfortunately, there is no particular rule of court or legislation that permits this as of right. Instead, there are three ways this is done. First, a judge or master can unilaterally make the decision to substitute initials. This is uncommon, but in family cases involving sensitive issues, may be ordered. Second, both parties can agree to substitute initials for names. This is the most common manner in which pleadings are amended. Finally, the party wishing to be anonymous in the eyes of the public may bring an application before the court. Before directing the use of initials, the court must be satisfied that the party's interest in privacy outweighs the court's interest in preserving openness and freedom in the courts. It is not enough that a party might be embarrassed by allegations or testimony made in the course of the litigation. The concerns must be stronger. For example, if there would be a deleterious effect on the party's livelihood or reputation, it may be sufficient. An example of the court considering the issue of anonymity can be found in D. v. D., 2008 BCSC 306 As a cautionary note, an application to substitute initials in the style of cause should be brought as soon as it is practicable and certainly before any damaging information or statements are disclosed through the pleadings in the matter.

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.

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


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