Importance of Properly Drafted Family Law Documents

Signing a well-formed legally binding family law document

Bill 16 has recently been introduced into the Provincial Legislature which proposes the introduction of the new Family Law Act.  One of the dominant features of the new bill is how it changes the “best interests of the child” test in parenting decisions from the paramount consideration to the only consideration.  The new Family Law Act created by the Bill could be in force as early as the Fall of 2012.  In future entries we will be discussing how this new Act affects the law in British Columbia, and how it affects your family.  Below we discuss a recent family law case which illustrates the confusion that can arise in the family law context as a result of a lack of specificity in drafting a court order.
 
The Federal Government has also recently announced changes to the child maintenance amounts payable effective December 31, 2011.  This will increase liability for payors and increase the amounts received for payees.  To review these changes please visit the government website at http://www.justice.gc.ca.

No-one ever expects to get divorced.  When you meet that special someone and agree to spend the rest of your lives together, you mean it.  If those feelings were to ever turn sour, however, it’s often worse than never having met that person in the first place.  What many of us want in these situations is nothing less than a clean break and a chance to start fresh again.  However, the realities of life don’t often allow this, especially when there are children involved, or when one spouse needs the support of the other.  This is where careful planning at the time of divorce becomes so important, for example when it comes to drafting separation agreements or court orders: to make sure the responsibilities and duties of each parent are clearly set out, and to minimize the conflict and pain that can arise when dealing with someone who used to be so close.

M.G.B. v. C.A.B. is a case dealing with a situation where an already bad situation was made worse by a poorly drafted family law order.  Although the two parents, Mr. B and Ms. B, each treated their children with the utmost care and concern, the litigation between them had gotten to the point where it was dominating their lives.  Mr. B had custody of the children and was generally unemployed.  Ms. B was forced to give up her job at Lion’s Gate Hospital to take up a less demanding role as a telenurse for the Healthlink Nursing Line in Langley, BC.  Each party accused the other of not living up to the agreement they had in place.

So much information was filed in the proceeding that the trial judge was unable to sift through it all in time for the trial.  Many aspects of the separation agreement were fought over, including what expenses should be paid for by Ms. B, since this was not clearly set out in the Order.  Ms. B specifically was required to provide “medical documentation generally from September 2007 onwards” to Mr. B.  Mr. B interpreted the order to mean in perpetuity, but Ms. B interpreted the order to mean September 2007 until the time the order was signed.  Also, each party was required to provide “documentation of their income” for several years following the order, but each party disagreed as to what level of “documentation” was required.

The Court was unable to decide most of these issues due to the parties failing to comply with the legal requirements for many of the orders they were seeking.  The question of what was owed by Ms. B concerning the children’s expenses could not be determined because Mr. B failed to provide adequate information about his income.  Ms. B was found to be correct in interpreting the requirement for her medical documentation to mean until the time the order was signed.  As for the “documentation of their income”, the Judge was required to be generous in his interpretation of the language, so he found both parties were in compliance.  In the end, the Judge had no choice but to settle the few aspects he could and leave it open for the two to individually re-file the many complaints he couldn’t deal with, further complicating their lives and adding costs that they could not easily afford.

Divorce is an emotional time, but the legal issues surrounding it require clear and careful thought.  It is important to remember that what is negotiated or agreed to in your separation agreement will almost certainly have long-lasting repercussions that may go well beyond what you intend.  Make sure you are informed.  Many clients simply want to deal with the issues quickly.  However, this case demonstrates how important it is to ensure the issues are dealt with correctly.

M.G.B. v. C.A.B., 2011 BCSC 907, can be found at www.canlii.org.