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The LawLINE blog will not be updated after March 26, 2010. This blog contains general information only and is not meant to be used as legal advice for specific legal problems. The information applies only to British Columbia, Canada and may become outdated as laws or policies change.

All i wanna do is get outta this place..

Margaret calls LawLINE as soon as it is open, following a heated discussion with her ex- husband Kyle the evening before. She is breathless and angry as she tells me her ex- husband is ‘keeping her prisoner’. Alarmed, I ask her why she has not called the police. She goes on to explain that what she means is he states he will ‘keep the children’ with him if she decides to move from the island they both live on. I ask her to give me some more background information about how long they were married and what their custody arrangements are.
Margaret tells me that following their divorce two years ago, the pair shares custody of their 5 and 7 year old children, Ashley and Mark. Margaret has the children during the week and Kyle has them on weekends. While the marriage was blissful and intact, the couple moved to Salt Spring Island (the “Island”), where Margaret was at first happy to play 'stay at home mom' to their children. When the marriage broke down, they agreed in writing at mediation to share the children one week on, one week off. Although Kyle has a well paid job in his field, Margaret was unable to secure work as a commercial insurance broker on the Island. Margaret is only able to get some part time hours selling pet couture clothing at the local markets. Margaret has recently been offered a highly paid position in Kelowna, about 7 hours drive and a ferry ride away. Her parents have also retired there so she would like to move there with the children. Kyle is not happy about this and tells her he will do everything in his power to stop her from taking the children.
Margaret wants to know what, if anything, he can do to stop her from moving. She has already accepted the job and has booked flights for her and the children for next week.
I tell Margaret that if they cannot come to an agreement (and preferably in the form of a consent order) and she goes ahead and moves away with the children, he may make a court application for custody of the children and her actions may go against her. Anything that disrupts the current custody order that they have or significantly disrupts the current access arrangements must be agreed to by both parties or the person moving must have the court’s permission.
Margaret tells me its unlikely Kyle will agree and wonders how she would fare in getting court approval. Because she is the primary custodial parent, surely it will go in her favor?
I tell her that unfortunately, there is no way to really predict what will happen. Each case is decided individually based on the circumstances in that particular case. What the courts do use are some principles – the most important being the ‘best interests of the child’. The Supreme Court of Canada case of Gordon v. Goertz in 1996 sets out these factors and established that there is no presumption in favor of the custodial parent. The court will first look to see if there has been a material change in circumstances (this means – will the proposed move affect the current custody arrangements being exercised now). If a material change of circumstances has been established, the court will then look at the best interests of the child. There are no hard and fast rules here, but in general, some factors that will be considered are (taken from Gordon v. Goertz):
1. The existing custody arrangement and relationship between the child and the custodial parent;
2. The existing access arrangement and the relationship between the child and the access parent;
3. The desirability of maximizing contact between the child and both parents;
4. The views of the child;
5. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
6. Disruption to the child of a change in custody;
7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

There’s a silence on the end of the phone once I finish telling Margaret this. I ask her if she understands and she tells me she just wants an answer. I tell her that I cannot give her a definitive answer especially as there is contradictory case law on this topic. Essentially, though, without Kyle’s consent and given the distance she is planning on relocating, she will need to convince a judge that it is in the best interests of her children to do so. Moving for a new well paid job and family support are two reasons that are relevant but she should be prepared for the fact that she may not get the result she wants. If she takes the children without his consent or without an order (as she is contemplating) she puts herself in a poor position if he then goes to court.

There is a website (http://www.bcfamilylawresource.com or type ‘JP Boyd and ‘mobility’ into Google search) that she can review which has a discussion on this very topic. In this discussion, JP Boyd states that as a general principle, a parent with primary residence has a 60% chance of being allowed to move and that the principles outlined above in Gordon v. Goertz are used in the courts analysis of the situation. This issue is also referred to as ‘child mobility’ or mobility rights.

Another useful link with some examples can be found on the Canadian Bar Association website.
http://www.cba.org/CBA/National/may04/feature3.aspx .

Common-Law Relationships and Separation

Anna and Baron have been living together for 8 years. Anna works as a part time nurse, and Baron owns a successful employment agency. Baron owned a house when they initially got together but sold it and used the 75K towards a house together. Anna had no money at the time but for the first five years shared the mortgage payments with Baron. Baron told Anna initially that it would be better if he is the only one on title since he was putting the deposit down, but that it was ‘their house’. Anna has not paid towards the mortgage for 3 years but does everything else for Baron – housekeeping, cooking, and even house renovations. Baron has not had to hire a receptionist/office manager for the employment agency business because Anna has happily fulfilled this role understanding that the business is a major source of income for Baron and herself.


Anna calls me at LawLINE and tells me Baron has asked her to move out. Furthermore he states that because they were not married she is not entitled to anything. Anna tells me that her friend told her that in BC once you live with someone for 2 years you have a common law marriage anyway. Is this true? If she moves out will she lose her ‘claim’ to anything from him?


After calming Anna down I tell her that there are a few issues here, the best thing to do would be to go through them one by one. I tell her that what we do at LawLINE is give brief, next step legal advice but that after getting some advice from me, and doing some research, she would also benefit from seeing a family lawyer to get some specialist advice.


I tell Anna that in it’s a common misconception that in BC after a certain period of time that one becomes ‘married’ by common law. The only way to become married is to hire a wedding commissioner and choose to marry. What the BC provincial law does tell us about couples that live together for 2 years in a ‘marriage like relationship is that they are defined as a ‘spouse’.
‘So how does that differ from being married?’ Anna asks me.


I tell Anna that for things like spousal support and child support there is very little difference (except there are some time limitations to make a claim for spousal support). There is however a difference when it comes to property division. Married persons can take advantage of the Family Relations Act provisions (part 5) that sets out in section 56 that each spouse is entitled to a half interest in ‘family assets’. Unmarried persons are not able to make a claim under this section, in fact the division of property for unmarried persons is not covered at all in the Family Relations Act.


I can hear Anna taking a sharp breath in. I go on to tell her that this does not mean she is not entitled to anything. If assets are owned jointly then they are presumed to have an equal interest. If the asset is owned by one person, but the other wants to make a claim for a share in the asset, then they need to make a claim under an area of law called trusts. This is best described by JP Boyd on his website JP Boyds Family Law resource. He describes the division of individual assets as:


The essential point of a trust claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held "in trust" for the non-owning party by the person who owns the property on paper. The non-owning party who is the beneficiary of a trust held by the owning party is entitled to receive compensation for his or her interest in the property subject to the trust. JP Boyd http://www.bcfamilylawresource.com/


I go on to tell Anna that she would need to start the action against Baron (if they can’t settle it between them) in the Supreme court and she would need to prove to the court that Baron was ‘unjustly enriched’, she was correspondingly deprived, and that there is no legal reason for the enrichment. Given the type of claim she has she would be well advised to hire a lawyer for this. She should not presume she would get half either, the courts would look at her contributions (not just financial) and his.


She would be well advised to review JP Boyds site, and the LSS Family law website (http://www.familylaw.lss.bc.ca/) so she is armed with some information before going. She should also consider making a claim for spousal support, she has a time limit of one year after the relationship ends to make a claim. This she can also discuss with a lawyer.

IS TWELVE A MAGIC NUMBER?

Nope. Not when it comes to family law, anyway.

There’s a popular misconception that when a child turns twelve, he or she can choose which parent he or she wants to live with.

The truth is that while the preference of the child may be relevant when making custody decisions, there is no specific age at which the preference automatically decides the issue.

A more accurate saying is: babies go where you put them, children go where they’re told, and teenagers vote with their feet. But in practice, each case turns on its own facts. The preferences of children as young as eight and nine has been considered by judges in some cases. This is especially true where the child appears to be mature and thoughtful for his or her age. However, the child’s preference does not bind the judge, whose decision must always be based on the overall best interests of the child. If the child’s desire is based on poor reasons or there are other, more important facts, the judge may grant custody to the other parent. However, by the time a child is near adulthood, judges will generally recognize that a custody order that contradicts the child’s preference will be impractical.

So now you know: there’s no magical number, just a practical spectrum.

Extra Money for People Looking After Children of Relatives

Sarah has been taking care of her 3 year-old nephew, Paul, for the past 4 months. Paul’s mother, Mary, had to leave the country and Sara had expected that she would be back by now. But Mary’s plans have changed, and now she is not expected back for another year. Sara works full time and has been trying to make ends meet but with two children of her own to support, she can no longer afford to support her nephew without some financial help.

I tell Sarah that a relative who cares for a child residing in his or her home may be eligible to receive monthly Child in the Home of a Relative (“CIHR”) benefits from the welfare ministry a.k.a. the Ministry of Employment and Income Assistance (“MEIA”).

The criteria for these benefits are set out in section 6 of the Employment and Assistance Regulation (see http://www.eia.gov.bc.ca/PUBLICAT/VOL1/Part3/3-3.htm#6 ). The main criteria are:

(a) the child must reside with a relative,
(b) the child’s parent must have placed the child with the relative,
(c) the child’s parent must not reside with the relative,
(d) the relative and any other adults aged 18 and over in the relative’s household must authorize MEIA to conduct a criminal record check, and to review whether they have had prior contact with the Ministry of Children and Family Development (“MCFD”). They must also agree that MEIA can use this information to conduct a safety audit to determine if the relative’s home is a safe placement for the child;
(e) MEIA must decide, after a safety audit, that the relative’s home does not pose a level of risk to the child that would make it an inappropriate place for the child;
(f) there is no “kith and kin agreement” with the Ministry of Children and Family Development (in which case other funding may be available from that Ministry)


“But,” says Sarah, “I work full-time, and so does my husband. Isn’t MEIA the welfare ministry? How can I be eligible for welfare benefits?”

I explain that MEIA is indeed the ministry that administers welfare benefits in B.C., but a relative who is caring for a child in their home does not need to be financially eligible for welfare in order to receive CIHR benefits on behalf of the child. Furthermore, the care-giving relative’s household income and assets are not considered in determining whether they are eligible for CIHR benefits on behalf of the child.

“So how much is the benefit?” she asks. I tell Sarah that it depends on the age of the child. There is a chart of the different rates at http://www.eia.gov.bc.ca/mhr/cihr.htm. For a 3 year-old like Paul, the maximum is $257.46 per month. MEIA does expect a child’s parent(s) to contribute to the child’s care. However, if the parent(s) cannot or do not contribute, they do not pursue the parents for child support. If Mary contributes to Paul’s care, any amounts she gives Sara will be deducted from the CIHR benefit.

“What do I need to do to show MEIA that Mary placed him with me?” Sarah asks. Before Mary left B.C., she wrote a notarized letter giving Sara the authority to care for Paul until further notice, and also confirms that Paul’s father, Joseph, is deceased. Will this letter suffice?

I tell Sarah that the notarized letter may be good enough, but usually, MEIA wants the child’s parent to sign the CIHR application form, confirming that they want the relative to care for their child. However, in cases where the parent is not available to sign such a form, MEIA may be persuaded to accept a letter or other document which confirms that the parent wants the relative to care for the child. The care-giving relative does not have to have a court order for custody or guardianship.

“How do other benefits, like the child tax benefit, affect CIHR benefits?” Sarah asks. “Are they deducted from the CIHR benefit amount?”

I explain that the Child Tax Benefit, Universal Child Care benefit, and most other benefits paid on behalf of children are not deducted from CIHR benefits. A relative like Sarah who is caring for a child can get the Child Tax Benefit and Universal Child Care benefit, and she should apply for those as soon as possible. There are other benefits that some relatives caring for children may qualify for. For example, if the relative is caring for a child whose parent (or parents) have either passed away, or are receiving CPP disability benefits, then the child may be eligible for CPP benefits. There are CPP benefits for children of disabled CPP contributors, and CPP benefits for surviving children of deceased CPP contributors. CPP benefits are not deducted from CIHR benefits. I tell Sarah that the Legal Services Society (a.k.a. Legal Aid) has a family law website that includes a useful chart with more information about various benefits that may be available to some relatives who care for children. See: Grandparents benefits

Finally, I advise Sarah if her application is refused, she can appeal MEIA’s decision. The first step in an appeal is to file a “Request for Reconsideration” of MEIA’s decision. That must be done within 20 business days of the day the relative was notified of MEIA’s decision. I tell Sarah that if she needs to pursue a Request for Reconsideration, she should call me again so I can discuss that process with her and offer some advice.

And with that I conclude the call.

For your further information, the legislation regarding CIHR benefits does not define what categories of “relative” may be eligible for those benefits. As MEIA has an obligation under the BC Human Rights Code not to discriminate against someone on the basis of their family status, the term “relative” should, in our view, be given a broad interpretation, and certainly includes blood relatives (siblings, cousins, aunts and uncles, etc) and relatives either through marriage or through common law relationships (e.g. step-parents, step-grandparents, step-auntie, etc).

Finally, people who receive income assistance themselves can also get CIHR benefits if they meet all the other criteria for CIHR benefits. The CIHR benefit is not considered to be part of the relative’s “income,” so it is not deducted or clawed back from the relative’s own income assistance cheque. Furthermore, where the child cared for is under the age of three, or the child has a physical or mental condition that precludes the relative from leaving home for the purpose of employment, the relative will not be required to look for work in order to continue getting his or her own income assistance cheque.

LAST UPDATE: ONTARIO DEMAND LETTERS

Still nothing.

It is nearly a year now, and the Ontario Law Society (“OLS”) has still not made a decision. In the meantime, at least one Ontario lawyer continues to crank out these letters.

The official line from the OLS is that they are still “investigating.” As the facts are perfectly clear and simple, this just boggles the mind.

Since this is our fourth entry on this topic, there will be no further updates regarding the OLS until, or should we say, unless, they reports that they have made a decision.

We have found our experience with the Ontario Law Society very disillusioning.

As they are unable or unwilling to handle complaints within a reasonable period of time, we are working on another option, and will let you know about that once it gets underway.

SHOPLIFTING AND SCARY NOTICES

From time to time we get calls from people who have been caught shoplifting. Generally, they’ve been caught red-handed by store security, and released a short time later after some paperwork.
More often than not the police did not attend the scene and were informed of the incident after the fact by store security.

Our callers often ask us about a ”Notice Prohibiting Entry” that store security has either gotten them to sign or else just given to them. This form tells the caller that he or she is banned from the store for a period of time (usually a year), and warns that if he or she breaches the ban, “you may be subject to arrest without warrant and charged with an offence and subject to a fine pursuant to the Trespass Act.”

Often store security also serves the person with a “Notice of Intended Legal Action,” which states that the store intends to seek compensation in civil court for various alleged expenses. The notice is followed up by mail with a demand letter. Sometimes this arrives after criminal proceedings have been completed, sometimes not. The letter essentially demands that the caller pay a specific sum of around $500 to compensate the store for “investigative and administrative costs.”

Since most people think of shoplifting as a criminal rather than civil matter, this all comes as a bit of a surprise. What’s the deal with these notices? Is shoplifting a criminal or civil matter?

Technically, it’s both, but these notices and demand letters need not cause undue concern.

As for the “Notice Prohibiting Entry,” the fact is that stores, while generally open to the public, are private spaces, and owners or their agents can indeed ban anyone they want (unless they do so for reasons that violate the B.C. Human Rights Code).
If you try to steal from their stores, they can ban you. The language of the notice, while technically true, is rather overblown. “Subject to arrest without warrant” means that if the person comes back, store security can stop the person again and remove them from the store. As for “you may be charged with an offence and liable to a fine,” the likelihood of this actually happening is practically zero. Such a charge would have to be approved by Crown Counsel, and we’ve never heard of such a case.

Nonetheless, stores are private places, and if you’re banned you should stay away for the stated time.

As for the “Notice of Intended Legal Action” and demand letters, these are rather misleading. Technically, the store can sue a would-be shoplifter, but the amount of money a court would order in the vast majority of cases is so low that it is almost never cost-effective to actually carry out a lawsuit. So in nearly all cases, if you just ignore these letters, nothing happens. It’s also very important to note that payment or non-payment of the amount demanded has no impact on whether or not Crown Counsel will lay a criminal charge, and no impact on what sort of sentence may be imposed. The civil side and the criminal side of the matter operate separately.

In short, don’t panic, but don’t do it again!