24 January 2018

Unequal Division of Family Property - what exactly is "Significant Unfairness" anyway?

Karen F. Redmond

Family Law Lawyer and Mediator

In the recent case of  Polard v. Polard, 2017 BCSC 1963, Justice MacKenzie granted the wife's request for unequal division of family property (70/30 in her favour) based largely on the fact that the husband had significant claims to excluded property. What is interesting to me about this case is that the excluded property consisted entirely of a Family Trust which the husband would be entitled to receive on the death of both his parents who were alive and well at the time of the trial. 

The case provides an excellent overview of the provisions of the Family Law Act required for consideration in claims involving "significant unfairness", including the definition of family property and excluded property; the presumption of equal division under section 81  and the considerations under section 95(1) if a party seeks to divide family property unequally on the basis of significant unfairness.   

Under the section 95 analysis, subjection (2) sets out the considerations for the court including the duration of the relationship between the spouses, a spouse's contribution to the career or career potential of the other spouse, and any other factor other than those listed in section 95(3) which states

"The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 162 (objectives of spousal support) have not been met."

Although significant unfairness is not defined in the Family Law Act, in L.G. v. R.G. , 2013 BCSC 983 at paragraph 71 the court cautioned against "a departure from the default of equal division in an attempt to achieve a "perfect fairness."  And only when an equal division would be "unjust or unreasonable" should the court depart from an equal division.  The BC Court of Appeal further clarified the meaning in Jaszczewska v. Kostanski, 2016 BCCA 286  saying at paragraph 42 that significant unfairness must be something objectively unjust, unreasonable or unfair in some important or substantial sense. 

The first step of the analysis in determining whether equal division would be significantly unfair is determination of family property (and debt) pursuant to sections 84, 85 and 86 of the Family Law Act, and once an equal division has been calculated, the court then determines whether or not equal division would be significantly unfair having regard to the provisions of section 95 (see Remmen v. Remmen, 2014 BCSC 1552 and Blair v. Johnson, 2015 BCSC 761.

In the Polard case what struck me was that the excluded property consisted of benefits which might at some point be conferred on the husband from the Family Trust controlled by his father.  The matter was somewhat complicated by the fact that distributions might in future be made to him from rebates which may or may not be forthcoming from CRA.  The husband argued that he never actually received any money from the tax maneuvers utilized by his father and the accountants which were done in order to reduce the tax bill from the sale of his father's business and not to benefit him or his siblings.  Despite the evidence of Mr. Polard Sr. that Mr. Polard Jr. would not actually receive any financial benefit until the death of both parents, the Court reapportioned family property 70/30 in favour of the wife. 

An interesting case to read.  As always, speak to a family law lawyer to discuss the specifics of your case. 

08 January 2018

Is a verbal agreement made between lawyers binding on their clients?

As counsel we have a tremendous responsibility to act not only in the best interests of our clients, but on their instructions.  When lawyers are retained, we are engaged by our clients to do certain things and act for them in a way that accords with the terms of our retainer agreement.  One of the things we are often tasked with is conducting negotiations.  It is crucial for our clients to know that we are negotiating on their behalf, but the decisions, particularly decisions to reach a settlement, that are made must be theirs. 

As counsel, it is as critical to ensure clear communication with our clients to make sure they are properly informed about any proposals and that they provide us clear instructions for responding and settling a case.  In this day and age of high speed internet, deals are often negotiated by email, by phone or on the Courthouse steps, as was the case in Sekhon v. Khangura, 2009 BCSC 670 (CanLII) where two lawyers negotiated and confirmed a settlement on behalf of their clients in person at the Courthouse.  The defendants in the Sekhon later claimed that a deal had not been reached so the matter was set for trial, with both former lawyers as witnesses.  

The Sekhon case provides an interesting overview of the issues that the Court considers when deciding if an agreement has been reached between lawyers, on behalf of their clients.  Were the lawyers properly retained?  Were the clients informed of the proposal and did they authorize their lawyer to accept the proposal on their behalf?  How was the information conveyed to the lawyer and how was it conveyed by the lawyer to the opposing party?  Did the proposal and the agreement need to be in writing? 
One of the defendants, Mrs. Khangura, claimed that a deal had not been reached because she had not instructed the lawyer to accept the proposal on her behalf.  In the alternative, she said at trial, that she told the lawyer she would consider the proposal if it was sent to her in writing, thereby alleging that the acceptance was conditional upon it being reduced to writing and signed.  Mrs. Khangura’s former lawyer testified that he was at all times acting on the basis of instructions from his client to settle the matter has she had been anxious to settle. 

The Court found that the defendants had properly instructed their lawyer to settle the case, and that the terms of settlement had been properly communicated verbally between the lawyers at the courthouse.  The following propositions were clarified at paragraph 110:

  1. A solicitor acting for a party in settlement negotiations is acting as the agent of the client;
  2. The solicitor is presumed to have the authority to bind the client to the terms of settlement;
  3. There is no obligation on other parties to make enquiries regarding a solicitor’s authority to settle a matter on a client’s behalf;
  4. It is in the best interests of the administration of justice that solicitors be free to contemplate settlements with solicitors without having to enquire about or be concerned with the actual authority of the solicitor;

Scherer v. Patella, [1966] O.J. No. 1017 (C.A.)
Harvey v. British Columbia Corps of Commissionaires, 2002 BCPC 69

  1. And from paragraph 117:  “A settlement made between counsel for the parties with their client’s knowledge and consent is enforceable as a binding contract.  The court will give effect to a binding contract, unless there are grounds for setting aside the contract under ordinary principles of contract law, such as fraud, duress, lack of capacity or mutual mistake.”  Robertson v. Walwyn Stodgell Cochrane Murray Ltd.[1988] B.C.J. No. 485 (C.A.).)
  2. An agreement does not need to be reduced to writing in order for it to be enforceable. 

“To my mind the form of the settlement is immaterial. The actual settlement was agreed to between solicitors. There was a settlement from the moment the solicitors reached an accord. The solicitors could have finalized the settlement by an exchange of correspondence or in any other manner they chose. However, the decision of Mr. Ouellette was to have his clients sign the offer to settle and have it accepted. That goes to form only.”   Rottacker Farms Ltd. v. C & M Farms Ltd.1976 ALTASCAD 158 (CanLII)[1976] A.J. No. 453 (S.C. (A.D.)) at ¶25:
And finally, “A complaint about a lawyer’s conduct in circumstances like this, however, is not relevant to the determination of whether there was a binding settlement agreement entered into between the two lawyers on September 22, 2006.  If a lawyer has exceeded his authority, that is matter between the lawyer and his clients: Adamoski at ¶4; Rottacker at ¶28; Baldissera v Baldassi2000 BCSC 1788 (CanLII) at ¶39.” 

So, the answer to the question posed: "Is a verbal agreement made between lawyers binding on their clients?" is yes, if the circumstances of the case are as those in the Sekhon case. 

As always speak to a lawyer if you have questions about your case. 

07 November 2017

Blameworthy Conduct in the Extreme – When retroactive child support can be ordered for more than three years

by Karen Redmond

A.J.D. v. C.D. 2017 BCSC 1559

In this decision of the BCSC released September 1, 2017 the wife applied for retroactive child support for 12 years, dating back to the signing of the separation agreement in 2003.  The separation agreement did not provide for annual exchange of financial information or annual updates of child support.  Both children had lived with their mother and the father had stated his income as $90,000 and provided misleading information about his income at the time of signing of the agreement.  He continued to pay child support based on the income information in the separation agreement.  The mother was not aware that the child support could be reviewed annually and took no steps to apply for disclosure of income information from the husband until he unilaterally reduced his child support in 2015 when the oldest child turned 19.  His income had increased significantly between 2003 and 2015 ranging from $105,551 to $772,127. 

The court found the husband’s conduct blameworthy in the extreme, citing the leading case D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.] and the exceptions to the principles outlined in D.B.S.  Although the Court in D.B.S. said that it would usually be inappropriate to delve too far into the past, to award child support retroactively for more than three years, the court said there are circumstances where the payor’s conduct does warrant such awards.  In the A.J.D. case Madam Justice Young ordered retroactive child support for 12 years for a total payment owing by the husband of $522,408 taking into account the circumstances of the children, their financial need and the present financial situation of the husband and the wife. 

23 October 2017


BY Georgialee Lang




Practicing family law is difficult enough without having to be wary of opposing counsel’s wily tactics. One of the cardinal rules of litigation is to provide notice to opposing counsel (or to an unrepresented litigant) of any steps you intend to take in court to pursue your client’s claims. To proceed without notice, also called “ex parte”, ought to be a rarity, particularly in the emotionally charged dynamics of a family law proceeding.

Toronto lawyer and former 2010 mayoralty candidate, Rocco Achampong, was handling a high-conflict custody matter that resulted in a judge ordering him to pay costs of $1,200.00 to his client’s husband for “sharp practice”. Such an order is extremely rare and only made when a lawyer’s conduct has been egregious.

The case started with Mr. Achampong’s client, who was living in the family home, obtaining an ex parte order for custody of her two-year-old daughter from the Ontario Court of Justice. That action resulted in her husband bringing a cross-motion for the same order, however, the parties talked through matters and decided to reconcile. All court action was terminated and the temporary custody order in favour of the mother was vacated.

Their reconciliation, however, was brief and ended after police were called to the home for an alleged incident of domestic violence. Promptly thereafter, the father brought another application to court seeking custody of his child and alleged that he and his wife had previously agreed they would share custody, but she had reneged on their oral agreement. After filing the application but before he obtained a fresh court order, he went to the child’s daycare and brought the child to his home.

This triggered a landslide of emails, letters and telephone correspondence between the parent’s respective lawyers, all of which adopted a conciliatory tone as the lawyers made efforts to resolve their clients’ problems without further court action. Different resolution options were canvassed including a 4-way meeting with clients and counsel, a mediation session, or an expedited return to court to have a judge assist.

However, while father and his counsel, Mr. Schuman believed their negotiations were bearing fruit, Mr. Achampong was hurriedly preparing court documents, while lulling opposing counsel into believing that the only issue between them was the selection of a mediator. 

In the meantime, father’s counsel had obtained an expedited hearing date as well, as a back up, and delivered his application documents to Mr. Achampong.

Despite this, Mr. Achampong obtained a custody order from the Ontario Superior Court of Justice, a higher court in Ontario with the same jurisdiction as the Ontario Court of Justice to make child custody orders. 

He did all of this without notice to opposing counsel, and without advising the judge that a new hearing date had already been secured in the lower court. Neither did he tell the Court that as recently as that morning, he had been involved in ongoing settlement discussions with father’s counsel.

Mr. Schuman was furious with the betrayal and reported Mr. Achampong to the Law Society. His client then brought an application for costs against Mr. Achampong personally. The Court made the following observations:

“Mr. Achampong never advised Mr. Schuman that he was wasting his time in the Ontario Court of Justice since his intention was to have the case heard instead in the Superior Court of Justice. He had an obligation to do so. Even if his client instructed him to proceed in the Superior Court of Justice (likely the case) and not to immediately advise Mr. Schuman (this is unknown), he cannot hide behind the excuse of client instructions. It was his obligation to let Mr. Schuman know that he would be proceeding in a different court, so that Mr. Schuman did not prepare needlessly for a case that would be stayed.

Mr. Achampong demonstrated poor judgment in exercising his professional obligations to Mr. Schuman on October 12, 2012. It is apparent from a review of the correspondence of counsel on that day that they were discussing urgent mediation to try and resolve the temporary issues. Mr. Schuman was taking steps to expedite this process. While Mr. Achampong asked for his client to be able to speak and see the child, there was no indication that he would be immediately going to court to obtain relief. It was certainly reasonable for Mr. Schuman to believe from the correspondence that the process would be mediation first, and if the case was not adjourned, that the temporary motions about parenting arrangements would be argued on Tuesday, October 16, 2012, in the Ontario Court of Justice.”

Mr. Achampong compounded his ethical breach by arguing before the Court that he had done nothing wrong. Another lesson learned. Best to fall on one’s sword than to justify improper behavior. The costs order is miniscule compared to the embarrassment of the national publication of his breach of professional ethics.

My guess is that in his zeal to have his client’s child returned, he forgot about his professional obligations as an officer of the court. In my view, no client’s case is worth a breach of ethical standards.


04 October 2017

Do You Need to Prove 'Ouster' in Order to Make a Claim for Occupational Rent in BC?

Karen Redmond
The Oxford Dictionary defines ouster as:   ejection from a property, especially wrongful ejection.  In the context of family law, it means that one person has been tossed out of the family home forcing them to live elsewhere.  In these situations, the person having been tossed, often wants to collect money from the ‘tosser’, and this is called occupational rent.  The case law has been relatively consistent about what is required in order to make a claim for occupational rent, and we would typically tell our clients that they had to prove they had been ‘forcibly ejected’ in order to support a claim for occupational rent.   
In McFarlen v. McFarlen, 2017 BCSC 1737,  a recent decision of Mr. Justice Jenkins released September 28, 2017 the finding of the court was that it was not necessary to prove that a party had been ousted in order to succeed with a claim for occupational rent.  The McFarlen’s were married for only two years but had lived together for 15 years prior to their apparently ill-fated nuptials.  They were both 53 at separation and did not have children together.  The central issue in the case was the claim by Mrs. McFarlen that her husband should pay occupational rent, because he had lived in the former family home since the date of separation, up to and including the eventual sale.  The issue was, had she been outsted, and more particularly, if she had , did she have to prove it in order to make her claim? 
Mr. Justice Jenkins reviewed the oft cited case of Ross v. Ross, 2013 BCSC 1716 which clearly lays out the principles applied in cases where claims for occupational rent were made.  At paragraph 47 of Ross:
From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:
1.     Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.
2.     The remedy is exceptional and should be used cautiously.
3.     The following factors, where relevant, are appropriately considered:
·        The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good, at para.90)
·        Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16--17; Wilgosh at para.108).
·        If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106; Good at para.90, and Peltier at para.16)
·        Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier, at paras. 16-17; Wilgosh at para. 106)
·        Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). ….
·        Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17)
·        Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).
4.     The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.
And continuing at paragraphs 48 through 50, Justice Verhoeven wrote:
“[48]      A similar list of considerations is set out in Higgins v. Higgins (2001), 19 R.F.L. (5th) 300, at para. 53 (S.C.J.), and is regularly applied in Ontario. Higgins expressly states that ouster is not required. Similar approaches are applied in Alberta, Manitoba, Nova Scotia and New Brunswick: Braglin v. Braglin, 2002 ABQB 816, at para. 3; England v. Nguyen, 2013 MBQB 196, at paras. 74-77; Carmichael v. Carmichael, 2005 NSSC 318, at paras. 49-64; Cripps v. Cripps, 2007 NBQB 2, at paras. 52-57.
[49]      Concepts of occupational rent derived from general property law may be inconsistent with modern family law. In England at para. 74, Johnston J. observed:
To focus on a consideration of "ouster" is to set the development of family law back to the "bad old days" when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court's consideration in exercising its discretion in attempting to value a fair result.
[50]      On the approach used by the other jurisdictions, as I interpret it, the overriding question is whether occupational rent, as a discretionary remedy to be used cautiously, should be utilized in order to achieve justice and equity in all of the circumstances of the case. This approach appropriately places little if any emphasis on the question of fault or blame for the decision of one spouse or the other to leave the matrimonial residence.

In support of the proposition that ouster is not required in order to prove a claim for occupation rent, Mr. Justice Jenkins cited a line of cases including Shen v. Tong, 2013 BCCA 519; Piderman v. Piderman, 2015 BCSC 475; Hodel v. Adams, 2016 BCAC 910.  The Honourable Judge also reviewed a line of cases where the BC Supreme Court had recently found that ouster was in fact a condition precedent to a claim for occupational rent.  At paragraph 20 he concludes that a party is no longer required to prove ouster in order to support a claim for occupational rent:    

"[20] So, is “ouster” a condition precedent to a claim for occupational rent? The authorities suggest that this remains an open question. Based on my interpretation of the law in this province,         I accept that “ouster” is no longer a pre-condition to a claim for occupational rent measured by the cost of alternative accommodation. The statements by Verhoeven J. which have been adopted by McEwan J. in Piderman as well as the statement by Willcock J. in L.M.R v. J.F.R., 187 A.C.W.S. (3d) 775, support this interpretation. My reasoning is reflective of the opinions expressed by Verhoeven J. and McEwan J. in Ross, Piderman and C.M.L.S.- that the proper way to approach a claim for occupational rent is as a discretionary tool to achieve fairness. Such a conclusion is consistent with family law legislation including the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) and the FLA which are not premised upon “fault based” principles. If I have correctly interpreted the law in British Columbia, then a review of the claim can proceed on the basis of equity. If “ouster” is required, this issue would have to proceed to trial to determine whether or not there has been an ouster."

In this writer’s opinion, the courts will still look at ouster in examining the fairness and equity principles, but it is no longer a condition precedent to these types of applications.

11 August 2017

Is child support payable for a child over the age of majority who is attending college or university?

As we approach September, the question is arising more and more frequently in my practice about when a child is still considered to be a dependent ‘child’ and in need of financial support if they are attending college or university and not living  at home. As a mother of three ‘children’, ages 19, 22 and 24, all of whom are pursuing post-secondary studies, I can tell you first hand that there is no clear point at which children are no longer in need of financial aid from their parents.  The case of Kiristmanson v. Kristmanson 2012 BSC 1750 is helpful in this regard. 

From the Court’s perspective, payment of child support for a child over the age of majority depends on the facts of each particular case. 

In six Canadian provinces, the age of majority is 18: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan.  And, the age of majority is 19 in the four remaining provinces and the three territories: British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon.

The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides the following definition for the term "child of the marriage" where a person is over the age of majority:

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

 . . . is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

Case law has interpreted "other cause" to include an adult child in attendance at post-secondary schooling.

The seminal case of Farden v. Farden (1993), 2570 BCSC tells us that the onus rests upon the applicant to establish that the person for whom a support order is sought is still a child within the meaning of the Act Master Joyce, as he then was, provided the following helpful analysis for determining the status of an adult child:

Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances.  It is not a conclusion which follows automatically from proof of attendance at the institution . . . In my view the relevant circumstances include:

(1)  whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

(2)  whether or not the child has applied for or is eligible        for student loans or other financial assistance;

(3)  the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4)  the ability of the child to contribute to his own support through part-time employment;

(5)  the age of the child;

(6)  the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7)  what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8)  at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

In Neufeld v. Neufeld, 2005 BCCA 7 (CanLII), the Court of Appeal expressly adopted the above passage from Farden as being a non-exhaustive list of considerations which apply in cases where the Court is being asked whether support is payable for an adult child.  In Neufeld, the issue was whether support was payable for an adult child pursuing a medical degree.  One of the important factors considered by the trial judge was that the decision to pursue this level of education was in keeping with the family’s pre-separation plans for their daughter. 

The cases tell us that there is no arbitrary cut-off point for child support for adult children, based either on age or level of education.  We know that there is no statutory prohibition against support for an adult child seeking a second degree; determination depends on the facts of each specific case, and Neufeld reminds us there is not a specific or primary piece of the Farden inquiry which will determine the result in any given case. 
So, the answer to the question, "Is child support payable for a child over the age of majority who is attending college or university?", is, as with most family law matters, it depends on the facts of your case.   

08 August 2017

The Presumption of Advancement as an “anachronistic legal principle”

The Presumption of Advancement as an “anachronistic legal principle”

In the recent decision of H.C.F. v. D.T.F. 2017 BCSC 1226, Mr. Justice Voith, in his lengthy (70pg) decision, provides an excellent overview of recent case law on the issue of division of property including excluding property.  He also provides commentary on the intersection between the law and consistency with social change.   The Honorable Judge examines the legislative intent behind the FLA, including the reasons for the expanded definition of spouse, which was specifically intended to include same sex couples.  His Lordship’s thoughtful and logical analysis paints his clear views on the presumption of advancement as an outdated concept, which, should not be allowed to continue, as he says, “in the context of legislation that was intended to recognize and reflect the broader and changed nature of relationships in present day society.”    He says at paragraph 149, “The ongoing application of the presumption of advancement under the FLA would mean that of these various potential forms of relationships, within which all partners are “spouses” for the purposes of the FLA, the only subset of relationship to which the presumption of advancement would apply would be a gift from a man to a woman in a traditional marriage. “  This being a result he calls “incoherent”. 

Get a coffee, sit down and read it.   It’s long but it's an essential and important case.