Vancouver Family Lawyer Tips from our Top Choice Awards Best* Vancouver Family Law Firm. In today’s blog we provide another one of our Best* Vancouver Family Lawyer Tips based on a recent case that criticized written family law materials. Remember, our family lawyer tips are no substitute for a face to face meeting with one of our top rated BC family lawyers.
*(Top Choice Award (2014, 2016, 2017), top rated reviews on Google, Yelp, threebestrated, lawerratingz.com).
MacLean Law has 6 offices across BC and in Calgary Alberta in Vancouver, Surrey, Richmond, Kelowna and Fort St John and in Calgary, Alberta. Call us toll free at 1-877-602-9900.
Click Here to fill out our rapid response consultation form so you can meet with us today.
Vancouver Family Lawyer Tips -The Importance of Accurately Citing Legal Authority
It’s hard to overestimate the importance of drafting clear, complete, and accurate pleadings in family court cases. Family law clients who are not assisted by lawyers, in particular, have significant issues with following basic evidentiary principles, and often fall into traps of hearsay, irrelevancy, speculation, argument, opinion, and scandalous or vexatious material.
Vancouver Family Lawyer Tips – Be Careful With Affidavit Contents
This issue was discussed in a recent case, A.H. v. R. H., 2016 BCSC 1924, released by the BC Supreme Court on October 20, 2016. The claimant, A.H., sought to vary the Final Consent Order with respect to parenting time, testing the respondent for drugs, and disclosure. The evidence, as is true for so many family cases, could be boiled down to “he said, she said” statements. The claimant, A.H., claimed R.H. was an addict and on drugs; R.H. claimed this was untrue, and he should not have to have supervised parenting.
Vancouver Family Lawyer Tips – New Case Explains Improper Materials
Justice Ball had many criticisms about how the evidence was presented in this particular case. Every allegation the claimant made was disputed by the respondent. This raises the question of credibility – who should the judge believe? The judge noted that the exchange of testimony did not contain the most important piece needed to change a final order – evidence showing a material change in circumstances.
Justice Ball quoted at length from a case called A.M.D. v. K.R.J., 2015 BCSC 946, where Madam Justice Cheema commented on the admissibility and relevance of affidavits in a family law context, especially when concerning the six-year-old child, D.J.:
[30] The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability.
[31] I find two categories of evidence particularly troubling. The first is where one parent describes his or her observation about a single interaction of the other parent with D.J., the child’s reaction on a single occasion to something the other parent has said or done, or the child saying he was or appearing to be reluctant to want to go to the other parent’s home at the time of transfer.
[32] The second category is the parents’ conversations with D.J. about issues in this case which are reproduced in their affidavits. It is highly inappropriate for the parties to implicate their six year old child in this dispute in any way.
[33] It is important to note neither party takes the position that the other party is an unfit parent (except, maybe, an accusation made about the respondent’s drinking, which I will address below). Even if there was such an allegation, the type of evidence described above reveals little, if anything, unusual about either parent’s interaction with their young child in the context of shared parenting.
Vancouver Family Lawyer Tips – Passive Aggressive Tactics Discouraged
[34] Instead, I find these observations are being traded in a “tit for tat” fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance.
[35] I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.
[36] I must decide what is in the child’s best interests. In that context, each party’s view of what is best for the child and the facts on which that view are based may be helpful to my decision. What is of dubious relevance and questionable reliability is a person’s observation that on one or a few occasions a parent’s interaction with the child or the child’s reaction was less than ideal. Of no relevance is what a six year old said to a parent when that parent, inappropriately, talked to the child about the legal issues in this case.
Vancouver Family Lawyer Tips – Include Proper Legal Basis To Avoid Losing
Justice Ball noted that many of the same issues in the above case were present in case at hand. First, he commented that in the application to vary the final consent order, there was no mention of s. 47 or s. 215 of the Family Law Act, which are the sections that allow the court to change a final order when there has been a change in circumstances. When the claimant brings an application and does not reference the test or specific statutory provision they are relying on to get the outcome they want, it becomes very difficult for the other side to respond to such a vague claim. Justice Ball affirmed this by showing how each piece of legislation cited in the claimant’s notice of application was either irrelevant (i.e. citing the Divorce Act instead of the Family Law Act), or too broad (general provisions that do not relate directly to the issue at hand).
Justice Ball considered the arguments of the respondent that they could not properly respond to the claimant’s application because the nature of it was vague and unclear. These arguments included examples for statute and case law mandating the completeness of filed applications.
Under statute, Rule 10-6(3)(c) of the Supreme Court Family Rules, BC Reg. 169/2009, states that a notice of application must “set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted”. Justice Bell went on to consider the case law on this issue as follows:
[27] As noted in cases such as Vanden Bos v. Vanden Bos, 2006 BCSC 172 at para. 23, the purpose of the mandatory listing of the legal authority in Form F31 is to ensure parties have timely and clear warning of their opponent’s perspective and argument. (See also A.M.D. at para. 8).
[28] This mandatory listing of legal authority also provides the court with a clear advance understanding of the issues which the applicant intends to litigate. This avoids argument at the commencement of proceedings in chambers about allowing a judge an opportunity to appreciate the nature of the application and avoids time being spent inquiring about the ambit of the application in open court where judicial resources are scarce and costly.
[29] The weight of authority on the meaning and effect of the words in Rule 10-6(3)(c) commences with the case of Zecher v. Josh, 2011 BCSC 311, also noted in The late Honourable Justice G. Peter Fraser, John W. Horn, Q.C. & The Honourable Madam Justice Susan A. Griffin, The Conduct of Civil Litigation in British Columbia, 2d ed. loose-leaf (Markam: LexisNexis, 2007). Both of the cited works support the proposition that the application should fully disclose the arguments to be made and that Part 3 must contain more than “a cursory listing of the Rules that might support the particular application.” (Zecher at para. 31).…
[32] Subsequently following the foregoing authorities, in Dupre v. Patterson, 2013 BCSC 1561, a bare citation of legislation relied upon was found not to comply with the Supreme Court Family Rules with respect to a notice of application or an application response (para. 48).
Vancouver Family Lawyer Tips – Judges Want Proper Materials In Family Law So Be Careful And Focus On Best Practices
In short, nothing will be more unimpressive to a judge than when materials are drafted without careful regard to the rules of evidence and the rules of court.
Call our senior family lawyers today to find out how we can create compelling family law materials and arguments for you. 1-877-602-9900
By Hannah M. DeJong, articled student
