Family Courts and Judicial Compensation

by Shelley Bentley

The CBABC sponsors 69 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilitized by the CBABC in legislative review, law reform initiatives, and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Erratum
The June 2005 (Vol 17, number 3) issue of BarTalk Section Talk column which covered a presentation to the Vancouver Family Law Section on a law reform proposal, incorrectly reported remarks made regarding the current state of the law with respect to the rights of a surviving spouse when the other spouse dies after a triggering event under Part 5 of the Family Relations Act has occurred.

The correct version should state that if one party to a marriage dies after a triggering event has occurred, the survivor can still pursue the statutory half interest in family assets under Part 5 of the Family Relations Act, although some practitioners are of the opinion that a proceeding to assert Part-5 rights must also have been commenced before death. However, if a triggering event has not occurred, any claim the survivor might make with respect to family assets that were owned by the deceased spouse will be left to succession law, including the Wills Variation Act, if applicable, or else constructive-trust litigation.

Elder Law
Lawyer Kathleen Cunningham led a roundtable discussion at a recent meeting of the Elder Law Section about best practices in advising clients about enduring powers of attorney. This topic was addressed in a recent National Elder Law Conference publication.

The goal of establishing a best practice is to promote powers of attorney that are well conceived, executed, and appropriately administered, and that promote client autonomy and minimize intrusion. The perception that guidelines are needed has been born out of the increasing use of such documents by our aging population.

Briefly, the guidelines are as follows:

1. Know your client and be clear on who you are representing, if other family members are involved.
2. Interview your client alone, if not during the first interview then in a subsequent interview.
3. Presume, but also ascertain capacity. Capacity is task specific. Lawyers have a duty to ensure that clients understand the nature and effect of the powers of attorney they grant. Persons may execute valid powers of attorney even though they are no longer capable of the daily management of their financial affairs. Can the client list his or her assets and give approximate values and locations? Lawyers may need to check collateral sources to verify the information. Can the client explain the choice of a particular attorney? The lawyer’s questions should be open-ended rather than simply requiring a yes-or-no answer. If a lawyer is in doubt about a client’s capacity, or if the client’s family is conflict-prone, even if the lawyer is not uncertain about the client’s capacity, the client should be asked to undergo a capacity assessment. This will assist in meeting any future challenge to the granting of the power.
4. Appropriate choice of and accountability of the attorney. If the lawyer is concerned that the client is not completely comfortable with the choice of attorney, the lawyer should delve further. Why has the client appointed this particular person? Does the person have the skills and integrity? Is the client dependent on the person and being overly influenced to implement the power? Is a professional or neutral third party a better choice?
5. Advise the attorney. It is recommended that the attorney’s fiduciary duties, ethical obligations and standards of care be set out for the attorney’s information, if not in the document itself then in a separate letter. The document could require the attorney to report periodically to the lawyer during the attorney’s mandate.
6. Address special needs or wishes. There is a danger that the client’s specific needs are not being addressed in the standard form document frequently used. Does the client have assets in another jurisdiction? Will that jurisdiction recognize the power of attorney? Does the client have dependants? Does the client want to compensate the attorney?

Family Law – Vancouver
Professor Rollie Thompson of Dalhousie University gave a presentation on the Draft Proposal for Spousal Support Advisory Guidelines, released by the Department of Justice on January 27, 2005. Professor Thompson is co-author of the Guidelines with Professor Carol Rogerson of the University of Toronto. The guidelines are advisory only, however, it is expected that judges, mediators and lawyers will use them extensively to determine spousal support. The guidelines attempt to mirror current practice under the existing legislative framework and are based on emerging trends and developing patterns in spousal support law. They are not committed to any particular theory of spousal support, but attempt to come up with a formula to reflect existing results found in the case law. The guidelines will not be legislated and will not have binding force. They are intended as a starting point for negotiations.

Professor Thompson gave an overview of the draft guidelines, their structure and the two proposed formulas, “with child support” and “without child support.”

At the centre of the proposed spousal support advisory guidelines is the concept of income sharing. Under the proposed approach, the use of budgets will be replaced with an income-driven approach to calculation of spousal support. The issue of entitlement is not dealt with under the proposed advisory guidelines.

Two different formulas are needed to deal with spousal support, depending on whether there are dependent children involved. There are different tax treatments, and the theory for spousal support may be different depending on whether there are dependent children.

Where there are no children, the calculation of spousal support relies heavily on the length of marriage to determine both quantum and duration. Gross-income figures are used and the calculation is fairly simple. Where there are dependent children there are compensatory claims flowing from the assumption of primary responsibility for the children, both during the marriage and after marriage breakdown. Quantum will be calculated taking into consideration the payment of child support. In addition, there are different tax treatments of spousal and child support that need to be addressed.

The proposed advisory guidelines will deal with duration as well as quantum and will provide narrow ranges for these figures. Differing fact situations will allow for appropriate negotiation within those ranges. They will set down the circumstances in which support will be indefinite.

In order for the advisory guidelines to be useful to lawyers and judges, Professor Thompson commented that they must reflect current outcomes while providing structure and consistency, in order to reduce the transactional cost of negotiation. However, he recognized that there will be cases outside of the norm for which the guidelines will not be appropriate. Exceptions will be formulated to allow departures from the formulas. The exceptions will not be exhaustive, but will try to limit the cases where departures from the formulas are appropriate.

Shelley Bentley practises wills and estates law at Kerr Redekop Leinburd & Boswell in Vancouver.

This article originally appeared in the August 2005 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.