Category Archives: Family

Lawyer (In)competence and Family Violence

PDF Version: Lawyer (In)competence and Family Violence

Legislation Commented On: Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

Family Lawyers Are Not Required To Be Trained In Nor Screen For Family Violence

In Canada, family law lawyers are not professionally required to screen for family violence. The Federation of Law Societies of Canada (FLS) and provincial / territorial law societies make no reference to screening or family violence in their codes of conduct.

The British Columbia Family Law Act, SBC 2011 c 25 (BC FLA) contains an expansive definition of family violence to include physical, sexual, psychological or emotional abuse of a family member, as well as the direct or indirect exposure to family violence by a child (s 1). The definition includes attempted physical or sexual abuse of a family member, coercion, unreasonable restrictions on a family member’s financial or personal autonomy, stalking, and intentional damage to property. There is no universally shared definition of family violence, domestic violence, intimate partner violence, or coercive control. What is important to note is that the BC FLA definition is expansive, and includes all forms of violence between family members. Section 8(1)(a) of the BC FLA, which is in the division devoted to out of court dispute resolution processes, requires family dispute resolution professionals to assess whether family violence may be present, the extent to which it may adversely affect the safety of the party or family member, and the party’s ability to negotiate a fair agreement. The term “family dispute resolution professionals” is defined to include family justice counsellor, parenting coordinator, lawyer, mediator, or arbitrator. The assessment for family violence must be done in accordance with the regulations, which only provides guidance for family law mediators, arbitrators and parenting coordinators, not lawyers. (See Family Law Act Regulation, BC Reg 347/2012).The BC FLA therefore suggests that lawyers ought to screen for family violence in order to assess whether it is present and discuss with the client the advisability of using various types of family dispute resolution processes to resolve the matter.

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From Recommendation to Legislation: Bill 28 Implements ALRI’s Recommendations about Property Division for Common-law Couples

By: Laura Buckingham

PDF Version: From Recommendation to Legislation: Bill 28 Implements ALRI’s Recommendations about Property Division for Common-law Couples

Legislation Commented On: Bill 28, Family Statutes Amendment Act

On December 11, 2018, Bill 28, the Family Statutes Amendment Act received royal assent and became law. The new legislation implements nearly all of the recommendations the Alberta Law Reform Institute made in Property Division: Common-law Couples and Adult Interdependent Partners, Final Report 112.

Bill 28 accomplishes three things. It:

changes the law about property division for common-law couples by creating legislated rules;
remedies a gap in child support legislation that did not allow courts to order child support for disabled adult children of unmarried parents; and
repeals the Married Women’s Act, a statute dating from 1922 which is now obsolete.

Although all three are important, this post focuses on the new rules about property division for common-law couples.

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Domestic Violence and Alternative Dispute Resolution in Family Law Disputes

By: Wanda Wiegers, Jennifer Koshan and Janet Mosher

PDF Version: Domestic Violence and Alternative Dispute Resolution in Family Law Disputes

Legislation Commented On: Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act; Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

Access to justice in the family law sphere has received a lot of attention in recent years. One recurring theme is the large number of self-represented litigants and the need to explore mandatory out-of-court dispute resolution. Alberta does not currently mandate any type of alternative dispute resolution (ADR) for family law or child welfare matters (see here), but some other jurisdictions do. One issue that arises in this context is whether ADR is appropriate in cases involving domestic violence. In Saskatchewan, Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act, will amend the Queen’s Bench Act, 1998, SS 1998, c Q-1.01, to require parties to participate in family dispute resolution (s 44.01(3)), but the parties may be exempted from that requirement if there is a history of interpersonal violence between them (s 44.01(6)(c)). We submitted a brief to the Saskatchewan Ministry of Justice in August 2017, prior to the enactment of Bill 98, which discussed the importance of considering domestic violence in this context (see here). The issue is once again alive as Parliament debates Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. In its current iteration, Bill C-78 would amend the Divorce Act, RSC 1985, c 3 (2nd Supp), to create duties (1) on parties to “try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process” (proposed s 7.3) and, (2) on legal advisers to encourage their clients to use family dispute resolution processes (proposed s 7.7(2)(a); Bill C-78 defines “legal adviser” as “a person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person” in any proceeding under the Divorce Act). Although the amendments recognize that the duties may not apply where “the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,” they do not explicitly exempt cases involving domestic violence at present.

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Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

By: Jennifer Koshan

PDF Version: Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

Reports Commented On: Family Violence Death Review Committee, Annual Reports and Case Reviews, available here.

Alberta’s Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) was passed in 1999 and has as its primary focus the provision of protection orders for persons experiencing family violence. The PAFVA was amended in 2013 to empower the government to establish a Family Violence Death Review Committee (FVDRC) with the mandate to review fatal incidents of family violence and to advise and make recommendations to the government on preventing and reducing family violence (PAFVA, s 16). The FVDRC was established in 2013, and its most recent annual report, released in May 2017, provides statistics on the 132 family violence deaths in Alberta between January 2008 and December 2015 (see Family Violence Death Review Committee, 2015/2016 Annual Report at 12). In a series of more in-depth case reviews released between May 2017 and May 2018, the FVDRC makes several recommendations related to legislation, policy and legal processes that I review in this post. For a good resource on domestic violence death review committees in other jurisdictions in Canada and internationally, see the website of the Canadian Domestic Homicide Prevention Initiative.

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Breaking Up Is Hard to Do, But Dividing Property Shouldn’t Be

By: Laura Buckingham

PDF Version: Breaking Up Is Hard to Do, But Dividing Property Shouldn’t Be

Case Commented On: Alberta Law Reform Institute, Property Division: Common-law Couples and Adult Interdependent Partners, Report 112

Last fall, I wrote a post about the Alberta Law Reform Institute’s project on property division for common-law couples. At that time, we were seeking feedback on preliminary recommendations for reform. Since then, we have heard from hundreds of Albertans. We considered all the feedback we received to develop our final recommendations. Last week, ALRI published its final recommendations in Property Division: Common-law Couples and Adult Interdependent Partners, Report 112.

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