WESTSIDE FAMILY LAW - Selected Articles

DAILY Q + A: HOW LONG DOES IT TAKE TO GET A RESTRAINING ORDER: If a restraining order is urgently required, an experienced lawyer can get the Order in the same day of meeting the client. This is a difficult task but with adequate evidence, it can be done. Most restraining Orders are "with notice" to the other party and take days to weeks but in urgent cases can be made without notice in a shorter time frame.

This applies also to asset protection restraining Orders intended to "freeze" assets like bank accounts.

REPRODUCED WITH PERMISSION OF K. KICK: Divorce, It's Just The Beginning WWW.ALLABOUTTHECHILDREN.US

Tuesday, February 2, 2010

Letting Go by Kimberly A. Kick, LCSW When relationships start to unravel it is instinctual to protect yourself. One of the first ways people protect themselves is by analyzing the situation and then placing blame. In the first stages of divorce, this can feel like a release; recounting the “little things” that now add up to monumental offenses, mulling over your ex-partner’s bad habits, all the ways in which you now love him or her...NOT. Psychologically this is the first step in self-protection and processing the loss of the relationship.

The problem begins when individuals become stuck in the “blame stage”. While it is human nature to believe we are right while the other party is wrong, we are also aware that somewhere in the middle lies the truth. This awareness can be lost when we feel hurt, betrayed, and fear for the future. Part of regaining your power involves letting go.

Although this may sound odd, the truth is that once you actually decide to move forward from the divorce, you regain your life. Yes, you will still have to deal with your ex-partner if you have children together. The goal is to communicate in a way that meets the needs of the children, while taking the emotions out. It sounds easier than it is, but with practice, being positive will not only benefit you, but provide good role modeling for your children.

Income Tax Deductions for Legal Fees in Family Cases

April 19, 2010

A portion of your legal fees paid for obtaining child or spousal support or for obtaining an increase or defending against a decrease in support payments may be tax deductible.

The tax treatment of legal fees paid in respect of a separation and/or divorce is set out in Canada Revenue Agency Interpretation Bulletin on Legal and Accounting Fees (IT-99R5) that was revised in December 2005 and in an October 10, 2002 Technical News Release. The Canada Revenue Agency has the right to approve or reject a taxpayer’s tax deductions for legal fees and to apply its Interpretation Bulletin on a case-by-case basis.

GUARDIANSHIP EXPLAINED:

July 2010

The term “guardianship” is unique to British Columbia family law. It is often confused with “custody." The legal concept of parental guardianship is unique to B.C. among other Canadian provinces. Guardianship is historically a right of non-parental adults given legal responsibility over infants. The B.C. government rolled all “guardianship” law into family law legislation in the 1970's without distinguishing between parental (i.e: custodial) rights and non-parental rights. That early family law became present day Family Relations Act. Guardianship is defined and distinguished from “custody” in the BC Supreme Court case of Wong v. Yeung 2000 BCSC 1536: see paragraphs 7, 8, 9 in particular. I recommend this case for reading by parents because it contains a good discussion of custody and guardianship. The court in Spiers v Spiers 1995 CanLii 2945 (BCSC) defines custody in general terms at paragraph 22: “Custody under the Divorce Act covers the whole bundle of rights defined in its definition as "care, upbringing and every other incident of custody." A final order for joint custody under the Divorce Act precludes an order for sole guardianship under the Family Relations Act as the Divorce Act takes priority: the custodial “bundle of rights” under the Divorce Act includes the same bundle of rights as “guardianship” under the BC Family Relations Act. If one party in BC is awarded sole guardianship (interim or final) without any narrowing of the scope of “guardianship” rights given under that Order, that party will have control over all aspects of raising the child to the exclusion of the other parent except to a right to apply to Court to review an important controversial decision by the sole custodian/guardian.

Such an Order ought to be rare and made only in a case in which the Court finds as a fact that the non-guardianship parent has proven to be disinterested or incapable of proper parenting. As an alternative to such an Order in a “thin” case (i.e.: doubtful or borderline evidence), the Court ought to make no interim Order for interim guardianship or at most apply its parens patriae jurisdiction and order inter joint guardianship “without prejudice” to the final determination. The difference between custody and guardianship is very important to know and understand: a parent can lose this important decision-making right by unwittingly agreeing to “sole guardianship” in a separation or divorce order or agreement. It is easy to give away these rights and very difficult to get them back again through Court applications and orders.

Any deduction you may make in your tax return is subject to review and revision by the Canada Revenue Agency and that this review can occur at any future date, as there is no time limit applicable to such a review by the CRA.

Restraining orders: - Growing Concern

The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 defines and limits the use of personal restraining orders in B.C. family law cases. This is a useful decision in that it provides a deterrent against the improper application of section 37 of the FRA by litigants who are apprehensive or uneasy about their former spouse’s communications or contact. Restraining orders have their use and are needed when the parties require a “cooling off” period with any direct or indirect contact between them as tempers run over the boiling point.

The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 says it all in its decision as follows (this quote is a good explanation of the legal grounds and test):[33] A restraining order under s. 37 of the FRA is a discretionary order, but there must be compelling reasons to invoke the court’s discretion. The most obvious compelling reasons exist in circumstances involving conduct that gives rise to a realistic risk of physical harm to a spouse or a child, but compelling reasons also exist when other forms of harassment, molesting or annoying conduct unreasonably impinge on the emotional or mental well being of a spouse or child, or simply represent an unacceptable interference with the normal daily life of the applicant in the opinion of the court, applying societal standards of decency. There is naturally a stigma associated with a court having deemed it necessary to restrain a person’s behaviour towards another by an order, so the court must, at the lower end of the spectrum, guard against overuse of the discretion, while at the same time enforce the appropriate standards of decency.[34] The court is of course concerned with subjectively-held fears and apprehensions on the part of an applicant, and the particular emotional vulnerability of individual parties is a material and relevant factor. However, the court is not bound to accept and agree with the subjective perceptions of an applicant, any more than it is bound to accept those of a respondent. Where threats have been subjectively exaggerated, the court may find an absence of compelling reasons to grant a unilateral restraining order. (See: L.T. v. M.T. 2006 BCSC 965, for a recent example of that approach.) [35] Where the court is unable to tell where the truth lies, it will decline to exercise its discretion to grant a restraining order. (See: B(J.R.) v. B(D.J.) 2005 BCSC 10 for a recent example of that approach.) [END QUOTE]

Such orders arise from section 37 of the B.C. Family Relations Act (“FRA”) and are similar to a “peace bond” order under the Canadian Criminal Code Section 810: see Regina v. P.A.O. 2002 BCPC 0560 for comments on this point by the Court in an interesting case that contrasts the “peace bond” type order with a section 37 FRA restraining order. The legal test is much the same and the legal effect is also similar except that one starts in criminal court and this is an important difference: criminal proceedings can result in criminal charges that last a lifetime as a stigma and impediment to employment prospects and even border crossings. Civil restraining orders don’t have a life-long impact but can be an impediment to border crossings because these orders are registered and show up on the Canadian police information database (aka “CPIC”) and show up at USA-Canada border crossings. This can result in impeding employment prospects and immense anger and embarrassment as a vacation is ruined. Neither results are intended by section 37 FRA but these do occur because these restraining orders are registered and are required to be registered on the assumption that there are valid and substantial reasons to protect one party.

NOTICE:

All information here is the written work of Anna L. Perry and is based on information and the status of the law on the date it is written. This is NOT LEGAL ADVICE and you must consult your lawyer for advice specific to your facts and circumstances.