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Vancouver and Edmonton Family Law Blog

Investing in Divorce? Not here.

Sometimes a new idea comes along which reaffirms our faith in what we already have. company has been formed in California with the sole purpose of financing divorce litigation.  The firm justifies itself by suggesting that spouses of the ?ber-wealthy (the firm in question specializes in cases with assets valued north of $2 million) require financing to level the playing field.  Its altruism diminishes, however, when it comes to remuneration, treating the parties family problems as an investment.  The company is paid with a percentage of the 'winnings' on the completion of trial or on settlement. In BC, lawyers in divorce cases are prohibited from being paid on contingency; that is, by taking a percentage of money 'won'.  The parties' and the children's interests rather than the potential capital return should be the motivation for the parties' decisions. The prohibition against contingency billing removes the potential that lawyers will seek to serve their own interests by advocating litigation which that may not be in the interests of those involved.In regards to the involvement of third parties in the financing of litigation for profit, the common law in British Columbia maintains that this is improper.  Such investment in litigation, or champerty, is discussed more fully in Farley v. Pearlson, 2001 BCSC 1237.While there is always the potential for abuse within a system, B.C. has dealt specifically with the problem of for-profit litigation financing and it seems unlikely that similar investment schemes will appear any time soon in the province.

Fallout from a No-Show

Is there any difference between an order pronounced after a contested hearing and one ordered when one of the parties hasn't attended?  The order itself is equally valid and binding in each circumstance.  If the order is later challenged, however, differences emerge.  Rule 14-7(77) of the BC Family Rules provides that, "The court my set aside a verdict or judgment obtained if a party does not attend the trial"  The test for setting aside an order is generally held to be the test set out in  Miracle Feeds v. D&H Enterprises Ltd. 1979 CarswellBC 48, 10 BCLR 58 which provides that the party seeking to have the order set aside must show that:

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.

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


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