The phrase “significantly unfair” is new to the law on domestic relations in British Columbia. Whatever “significantly unfair” might turn out to mean, the concept is of critical importance under the new Family Law Act [see Third Reading of Bill 16-2011 on the BC Legislative Assembly's website], as “significant unfairness” is the test that must be met before the court may:

1. divide family property or allocate family debt other than equally, under s. 95(1)

“The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to equally divide family property or family debt, or both …”

2. divide excluded property, under s. 96(b);

“The Supreme Court must not order a division of excluded property unless… it would be significantly unfair not to divide excluded property …”

3. set aside agreements dealing with property and debt, under s. 93(5); and

“… [T]he Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that … the agreement is significantly unfair …”

4. set aside agreements dealing with spousal support, including agreements waiving spousal support, under s. 165(5).

“… [T]he court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that … the agreement is significantly unfair …”

Fairness by Degrees

The Family Law Act is chock full of new language that will require the court’s interpretation. One of the first, I suspect, will be to determine what it is that “significant” adds to the meaning of “unfairness.”

“Unfair” without a modifying adverb is used at s. 65 of the Family Relations Act, RSBC 1996, c 128, where it marks the threshold that must be passed before the court reapportions property. “Grossly unfair” is deployed at s. 96 of the FRA with respect to the reduction of arrears of child support or spousal support, and we are all familiar with the case law dealing with “grossly” as a modifier of “unfairness” in this context; see Semancik v. Saunders, 2011 BCCA 264.

The plain language meaning of “significant” suggests that the threshold of “significantly unfair” is a higher standard more burdensome than mere “unfairness,” yet less burdensome than the zenith of “gross unfairness.”

• notable, weighty, important for what it indicates: The Century Dictionary and Cyclopedia, The Century Co., 1897, New York
• noteworthy, important, consequential: The Concise Oxford English Dictionary, Clarendon Press, 1995, Oxford
• important, momentous: The Imperial Dictionary, The Gresham Publishing Co., 1906, London
• sufficiently great or important to be worthy of attention, noteworthy: Dictionary 2.2.1, my MacBook

Few clues as to the legislature’s intent are found in the Family Law Act itself. The factors set out in ss. 93(5) and 165(5) are of course mutually consistent but have nothing in common with the factors set out at ss. 95(2) and 96(b), and of the two factors listed at s. 96(b), only one, the duration of the spousal relationship, makes an appearance in the nine specific factors described at s. 95(2) [roll mouse over here to see the nine factors]; see the excellent discussion of statutory construction by reference to related provisions in Sullivan on the Construction of Statutes [KL35.1.D75 2008]. As a result, it will likely be necessary to look beyond the new act for guidance.

“Significantly unfair” is used in only one other British Columbia statute, the surpassingly dull Strata Property Act, SBC 1998, c 43. In the context of owners’ suits against strata corporations, s. 164(1) provides as follows:

On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair
(a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

Dollan v. Strata Plan BCS 1589, 2011 BCSC 570 helpfully summarizes the law on the interpretation of “significantly unfair”, at paragraph 24:

“The phrase ‘significantly unfair’ in s. 164 has been described in Reid v. Strata Plan LMS 2503, 2003 BCCA 126 as ‘burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith’, ‘unjust or inequitable’, or unreasonable. Moreover, the word ‘significantly’ means that a court should only interfere if the actions or decision of a strata council results in ‘more than mere prejudice or trifling unfairness’ …”

In Gentis v. Strata Plan VR 368, 2003 BCSC 120, the court held that, at paragraph 28:

“… I understand the use of the word ‘significantly’ to modify unfair in the following manner. Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation’s duty to act in the best interests of all owners is in conflict with the interests of one particular owner or group of owners. Consequently, the modifying terms indicates that the court should only interfere with the use of this discretion if it is exercised oppressively, as defined above, or in a fashion than transcends beyond mere prejudice or trifling unfairness.

[29] I am supported in this interpretation by the common usage of the word significant, which is defined as ‘of great importance or consequence’: The Canadian Oxford Dictionary.”

In Strata Plan VR1767 v. Seven Estate Ltd., 2002 BCSC 381, the court emphasized the behavioural dimension of significant unfairness, at paragraph 47:

“The meaning of the words ‘significantly unfair’ would at the very least encompass oppressive conduct and unfairly prejudicial conduct or resolutions. Oppressive conduct has been interpreted to mean conduct that is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith. …”

Although some caution must be extended in recognition of the imbalance of power I expect to be characteristic of proceedings by owners against strata corporations, the general tenor of the case authority leans toward a definition of “significant unfairness” which sets the threshold somewhere beyond the “mere prejudice or trifling unfairness” mentioned in Reid v. Strata Plan LMS 2503, 2003 BCCA 126.

Whatever “significant unfairness” may ultimately be found to mean, the varying factors prescribed by ss. 93, 95, 96 and 164 to guide the court in its consideration of a case will likely result in the formulation of three different tests, each built up on a notion of unfairness that is more than merely unfair but less than grossly unfair.

On 17 November 2011, the Supreme Court of Canada refused leave to appeal the June 2011 decision of the Court of Appeal for Ontario in Elgner v. Elgner, 2011 ONCA 483. This case has important implications for the practice of family law in British Columbia as it strongly suggests that leave is or ought to be required to appeal interim orders under the Divorce Act.

In Elgner, the appellant elected to bring an appeal of an interim order for spousal support without first seeking leave, which I understand to have been normal practice in Ontario, on the strength of s. 21(1) of the Divorce Act which provides as follows:

“… [A]n appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act.”

In British Columbia, we have always interpreted this section as providing an appeal as of right (see for example, BC Family Practice Manual, §18.12), on the basis that the doctrine of paramountcy allows s. 21(1) of the Divorce Act to trump s. 7(2) of our Court of Appeal Act, which provides:

“... an appeal does not lie to the court from
(a) an interlocutory order, ...
without leave of a justice.”

Ontario's Courts of Justice Act contains an analogous provision at s. 19(1):

“An appeal lies to the Divisional Court from ...
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; ...”

In bringing his appeal of the interim support order, Mr. Elgner took the view that s. 21(1) of the Divorce Act was paramount legislation and he thus could not be required to obtain leave. Despite Mr. Elgner’s vigorous argument, the Court of Appeal insisted on constructing s. 21(1) of the Divorce Act in light of two other provisions of the act, s. 21(6), “Procedure on appeals”:

“Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.”

and s. 25(2), “Rules”:

“ ... the [provincial government] may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings; ...
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.”

In other words, although a plain reading of s. 21(1) suggests that leave isn't required, the Divorce Act expressly authorizes the provinces to make rules about appeals and provides that Divorce Act appeals should proceed "according to the ordinary procedure governing appeals to the appellate court" as set out in the relevant provincial statutes and regulations, in Ontario being the Courts of Justice Act and in British Columbia the Court of Appeal Act.

Madam Justice Gillese, writing for the court, held as follows:

[41]… by spelling out in s. 21(6) that an appeal under s. 21(1) is to be ‘asserted, heard and decided according to the ordinary procedure governing appeals’, Parliament dictated that the provincial rules are to be followed when exercising the appeal right given by s. 21(1). As has been noted, s. 19(1) of the [Courts of Justice Act] was operative when s. 21(6) of the Divorce Act was enacted. It was the ‘ordinary procedure’ in Ontario for asserting an appeal from an interlocutory order. …

“[48] In applying the doctrine of paramountcy, a conflict will not be found merely because of overlap in the subject matter of federal and provincial laws. The question is whether it is impossible to comply simultaneously with both laws or whether the operation of the provincial law will frustrate the purpose of the federal law: Canadian Western Bank, at para. 73.

“[49] As I have explained above, compliance with both s. 21 of the Divorce Act and s. 19(1) of the CJA is possible. A party may comply with both by applying for leave to appeal pursuant to s. 19(1)(b) of the CJA. Furthermore, again for the reasons given above, s. 19(1) does not frustrate the federal purpose behind s. 21 of the Divorce Act. As the two provisions operate harmoniously, the doctrine of paramountcy is not engaged. …

“[55] In conclusion, when ss. 21(1) and (6) of the Divorce Act are given their ordinary meaning and read in their entire context, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is clear that the right of appeal given by s. 21(1) is to be exercised in accordance with the ordinary procedures governing appeals of that nature. In Ontario, the ordinary procedure requires leave, if the matter to be appealed is an interlocutory order of a judge of the Superior Court of Justice.”

Assuming that the s. 21(6) phrase “ordinary procedure” cannot be interpreted to mean customary practice as opposed to the practice seemingly required by the Court of Appeal Act, it would seem that interim Divorce Act orders are finally in the same boat as Family Relations Act orders as leave is now required to appeal both.

The basic test to seek leave is the same in family law cases as it is for ordinary civil cases, namely that

1. the appellant must have a meritorious case,
2. the issues proposed to be raised must be important to the parties or to the practice of law generally,
3. the appeal must have some practical consequence for the appellant, and
4. the appeal cannot unduly delay the progress of the case

(see Watson v. Imperial Financial Services (1992), 65 BCLR (2d) 281 (BCCA) and Thorne v. Thorne, (12 March 1997), Vancouver CA022680), however the court will impose a higher burden on family law appellants to discourage meretricious, money-wasting and time-consuming appeals. As Mr. Justice Esson put it in Newson v. Newson (1998), 39 RFL (4th) 410 (BCCA):

"It is well settled that leave to appeal from interim orders in family matters should be granted only in extraordinary or, as it has sometimes been put, 'extreme' circumstances."

"Extreme" might be a bit extreme, but the point is that leave will be granted sparingly in family law cases as, I think, it should be.

On 14 November 2011, Attorney General Shirley Bond introduced the Family Law Act in the legislature for first reading. The FLA will, when it comes into force, reform the provincial law on domestic relations with a magnificence of scope not seen since the introduction of the original Family Relations Act in 1972.

The FLA has its roots in the work of the Justice Review Task Force, struck by the Attorney General in 2002 with the mandate of “identify[ing] a wide range of reform ideas and initiatives that may help us make the justice system more responsive, accessible and cost-effective,” and the 2005 report of the task force’s Family Justice Reform Working Group, “A New Justice System for Children and Families” (PDF). This report called for sweeping reforms to family law justice processes, and, among other things, recommended that: out-of-court resolution processes be the preferred tools for dealing with family law disputes, with litigation employed as a last resort; dispute resolution processes be more sensitive to family violence and children’s experience of their parents’ conflict; and, court hearings be simplified with judges more actively managing the court process and the litigants before them.

In 2006, the Attorney General announced a review (PDF) of the Family Relations Act aimed at modernizing the law and better supporting co-operative approaches to dispute resolution. The following year, the Ministry released fourteen discussion papers for comment in three phases, beginning in February 2007 and wrapping up the following December. The results were published in a paper released by the Ministry in February 2009, “Report of Public Consultations” (PDF).

The penultimate fruit of the Family Relations Act Review, the “White Paper on Family Relations Act Reform: A Proposal for a new Family Law Act” (PDF), was published in July 2010. The white paper gave a broad strokes outline of potential new legislation, and public comment was invited for a further three months. The draft Family Law Act was, however, incomplete. Firstly, it left undecided a number of technical questions on which the Justice Services Branch sought feedback. Secondly, the draft act did not address key implementation issues, including transition from the Family Relations Act, the reconciliation of inconsistent language in other legislation such as the Divorce Act and the Child, Family and Community Service Act, and how foreign orders and interprovincial and international treaties and conventions would be accommodated.

The FLA is wholly new to British Columbia. Although some aspects of the FLA are a modest update of the Family Relations Act, such as the act’s discussion of child support and jurisdictional overlap between the courts, the FLA

• imposes new and radically different legislative schemes on a number of traditional family law subjects (care of children, enforcement of court orders),
• codifies certain common law principles (conflicts of laws, fairness in negotiation processes),
• establishes novel regulatory mechanisms on matters new to provincial law (assisted reproduction, parenting coordination), and
• repeals some subjects of long standing in the FRA (parental support, statutory offences).

The new FLA bears a happy resemblance to the draft legislation proposed in the white paper but is, I think, much improved in certain key areas. To this extent the shock to the bench and bar of new legislation should be somewhat cushioned; we knew that this or something reasonably similar was coming, and the white paper has been a frequent subject of discussion at bar association meetings and continuing legal education programs. Nevertheless, the proposed act is more than double the length of the FRA, addresses new subject matter and imposes new regulatory schemes, and one simply cannot assume that any particular provision of the FRA has been carried over into the FLA.

Much toner will be spilt over the FLA in the days and months to come, and, on the assumption that further and better information and opinion will be forthcoming, here is my short summary of some of the key features of the new act.

Children

• Parents who have lived together after their child was born will be the child's guardians until they agree or the court orders otherwise.
• Guardians have parental responsibilities in respect of the child, and the time a child is with a guardian is parenting time.
• References to parenting arrangements means arrangements made in respect of the allocation of parental responsibilities and parenting time.
• Someone who is not a guardian has contact with a child.
• A guardian may appoint a stand-by guardian to act in the event of his or her incapacity, or a testamentary guardian to act in the event of his or her death.

Mobility Issues

• A guardian wishing to move with a child must give 60 days’ notice to those who may be affected by the move.
• A guardian opposing a move must file an objection within 30 days, failing which the move will be allowed.
• The guardian wishing to move must prove that the move is being made in good faith and that reasonable arrangements have been made to preserve the child's relationship with the other parent. When the guardians have equal or almost equal parenting time, the guardian wishing to move must also prove that the move is in the child's best interests.

Child Support

• Children younger than the age of majority may cease to be entitled to support where they have withdrawn from the care of their parents.
• A stepparent's duty to pay child support is secondary to that of a parent; a non-parent guardian’s duty is secondary to that of a stepparent.
• An order or agreement may make a child support obligation binding on the payor’s estate.

Spousal Support

• Spouse, for the purposes of spousal support claims, includes married persons, persons cohabiting in marriage-like relationships for longer than two years, and persons cohabiting in shorter unmarried relationships who have had a child together.
• The tests for entitlement and, if entitlement is found, for quantum and duration now mirror the Divorce Act.
• Spousal misconduct that causes or prolongs a spouse's need for support or affects the capacity of a spouse as to pay support may be considered in determining a spousal support claim.
• An order or agreement may make a spousal support obligation binding on the payor’s estate.
• The FLA does not reference the Spousal Support Advisory Guidelines.

Dividing Property

• Spouse, for the purposes of property claims, includes married persons and persons cohabiting in marriage-like relationships for longer than two years.
• Excluded property includes assets acquired by a spouse before the relationship, gifts and inheritances received by a spouse, certain kinds of court awards and certain kinds of insurance payments. Except for the increase in value of excluded property during the relationship, excluded property presumptively remains the property of the spouse who acquired it.
• Family property is primarily composed of the assets acquired by either spouse during the relationship. Family property is presumptively shared equally between spouses.
• The court may divide excluded property or reapportion family property but only where it would be significantly unfair not to do so.

Dividing Debts

• Family debts are debts incurred during the relationship, or incurred to maintain family property after separation, and are presumptively shared equally between spouses.

Court Processes and Enforcement

• The court may make conduct orders to manage its process, manage the parties before it and encourage the settlement of disputes. Among other things, the court may order that parties attend counselling, restrict communications between the parties, or require that a party post a bond.
• The court may also make case management orders. Among other things, the court may strike or dismiss all or part of a claim, prohibit a party from bringing further applications without leave, or require all further applications to be heard by the same judge.
• The Offence Act is inapplicable to matters under the FLA.
• The court, including the provincial court, may order that a party post security for his or her compliance, pay the other party's expenses for enforcing an order, or pay a fine of up to $5,000.
• Where nothing else will secure a party's compliance, the court, including the provincial court, may order that the party be jailed for up to 30 days.

I’ve posted a somewhat more detailed digest of the FLA at my blog.

The staff of the Ministry of the Attorney General have devoted an enormous amount of time to this project over the past five years and their efforts, and those of the persons situated more toward the political side of the Ministry, are to be recognized and applauded. It is an indication of the value of their work that this bill has survived two premiers, four Attorneys General and two assistant deputy ministers to make it to the order paper.

I would be remiss if I did not also mention the work conducted on our behalf by the lawyers selected to sit on the Attorney General’s FRA Review Advisory Committee and its successor, the Family Law Act Advisory Group, among whom were luminaries such as Trudi Brown, Eugene Raponi and Carol Hickman, and by those serving on the CBA British Columbia’s FRA Review Working Group, which included esteemed and involved practitioners such as David Dundee, Cori McGuire and David Halkett. The many submissions of the Working Group are available on the CBA’s website.