We are pleased to welcome family lawyer Alex R. Chan to our Vancouver office.
Alex completed his articles at Sincerity Law Group in Vancouver, which he practiced in the areas of corporate law, wills and estates, and real estate. Alex’s experience with these areas has taught him the value of being precise in communication. Alex has joined Henderson Heinrichs LLP to focus primarily on family law.
Polyamory is a hot topic these days. Societal expectations for relationships seem to be becoming more permissive, and with television shows like “Big Love”, and major news networks publishing polyamory “explainers” (https://globalnews.ca/news/4320857/what-is-polyamory/), polyamory appears to be working its way somewhat closer to the mainstream. It’s clearly not a topic that is going away anytime soon. But polyamorous relationships, just like other more “traditional” relationships, have the potential to break down. And what happens when a spousal polyamorous relationship breaks down? What happens in a polyamorous divorce?
I’M IN A POLYAMOROUS RELATIONSHIP: AM I STILL CONSIDERED A “SPOUSE” BY LAW?
In British Columbia, the Family Law Act sets out two ways in which you can become a spouse: you can marry your partner, or you can live with them for two years in a marriage-like relationship. There is nothing in the Family Law Act that says you can only have one spouse. Therefore, if you reside with more than one person, and you have a marriage-like relationship with each of them, then logic dictates that you can have more than one spouse at a time.
NOT JUST “50/50”: PROPERTY DIVISION & SPOUSAL SUPPORT
If one or both of those relationships were to break down, giving rise to potential Family Law Act claims for spousal support or property division, the matter would become quite complicated rather quickly.
The Family Law Act presumes that property will be divided in two: s. 81 says that “on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.” That presumption clearly cannot work if there are three or more spouses. The court would have to fashion a remedy tailor-made to the circumstances of the parties, using section 95 of the Family Law Act, which allows for the unequal division of family property by order of the court.
In making orders for unequal property division, courts will consider the duration of the relationship, any agreements between the parties, contributions to the career of the other spouse, the incursion of family debt and each spouse’s ability to pay a share of the debt, whether a spouse decreased the value of property in bad faith, tax liabilities, and any factors that would cause significant unfairness. It would be quite tricky to apply these factors to three or more people rather than the usual two. The usual zero-sum analysis simply doesn’t apply.
It’s quite likely that there have already been several polyamorous separations where the parties have had to divide property, but we have not yet seen a public trial decision regarding polyamorous property division or support under the Family Law Act. The uncertainty in how the law would be applied, as well as the cost of a three (or more) party trial, makes it more risky for polyamorous exes to pursue their property and support claims in court.
Anyone who finds themselves in the midst of a separation from a polyamorous marriage-like relationship would be well advised to seek legal counsel to ensure that their interests are protected.
If you are headed to trial, examinations for discovery may be part of the preparation that the lawyers go through to obtain the facts relevant to the claims made in your family law matter. An examination for discovery and review of documents the parties have disclosed helps the lawyers confirm the facts that each party is going to rely on at trial and can help to narrow the issues. The results can also sometimes lead to settlement negotiations and agreements.
Your examination for discovery will likely be the first time that the opposing lawyer will hear from you directly and this can help him or her better understand the strengths of your case and whether you will make a good witness at trial.
The transcript from your examination for discovery can be used in court to undermine your credibility or as the basis for legal arguments regarding your position. Remember that it is a tool for the other side (not you), but it is vital that you be accurate and forthright in your answers. It shows respect for the court and the legal process itself. Your lawyer will have the opportunity to conduct an examination for discovery of the opposing party.
The Mechanics of an Examination for Discovery and What to Expect
It is an oral examination conducted by a lawyer for the opposing party where the party being examined is under oath (you can swear or affirm, to tell the truth).
An examination for discovery usually takes place at the office of a certified court reporter or in a boardroom at your lawyer’s or the other party’s lawyer’s office, again before a court reporter. Your lawyer will tell you where and when to attend and will help prepare you if you are the one being examined.
You and your lawyer sit across from your Ex and his/her lawyer with a court reporter at the head of a table.
There is no judge present. The court reporter is there to take down the questions and your answers verbatim (exactly as spoken). The court reporter then produces a transcript and provides copies to your lawyer and your Ex’s lawyer.
The purpose of an examination for discovery is to let the other side ask questions so they can determine what they need to know regarding the issues in the dispute and what evidence supports your position on those issues.
Who must attend
If you are the claimant and your Ex is being examined by your lawyer, you must attend.
If your Ex’s lawyer decides he or she wants to examine you and if your Ex is the respondent, he or she does not have to attend.
The only people in the room will be you, your Ex, your lawyers, and the court reporter. You don’t have to worry about your Ex’s new partner or family members “sitting in.”
Preparing for an examination for discovery
It is normal to be nervous before attending your first examination for discovery. It can help to remember that your lawyer is there to make sure you are not asked inappropriate questions and to protect you if the other lawyer gets aggressive. The general rule is that questions are supposed to address only information that is relevant to the dispute or to the discovery of facts that are relevant to the dispute.
Review materials like affidavits, documents, and timelines
It is an unfortunate situation, but it can take a significant amount of time for a family law dispute to wind its way through the process to a resolution. This means that by the time you get to the point where an examination for discovery is necessary, the details of your dispute (especially if it’s something like a child support review that goes back several years) will not be as fresh in your mind as they once were.
Before you attend, it is a good idea to review any affidavits that have already been filed in court so you can refresh your memory. At least a week before your examination for discovery, set aside enough time to refresh your memory by reviewing the affidavits, any documentary evidence that has been produced, and the chronology of events. Talk to your lawyer about what he or she thinks you should review and tell them if there are any areas you are nervous or unsure about.
Take care of yourself and keep things low stress
Try to get a good night’s sleep beforehand. Eat a proper breakfast (go easy on the coffee or tea, they can make you jittery) and leave yourself plenty of time to get to the place where your examination is being held.
What to wear
This is not court, so you do not need to wear a suit or business attire unless that is your usual mode of dress. But, business casual is a good rule to follow. Wear something comfortable and bring a sweater in case you get cold (because the lawyers will be in suits the air conditioning may be turned on).
At the Examination for Discovery – General Tips
Your lawyer will talk to you about the process. They will ask you if you prefer to swear or affirm. If you are not a religious person, you don’t need to swear. It will not make any difference if you prefer to affirm.
Listen carefully and wait for the whole question
Listen carefully to the whole question that you are being asked and wait until you are sure the lawyer is finished asking the question before you start your answer.
It is perfectly ok to take the time you need to collect your thoughts and think before you answer. You should do this for two reasons: you want to answer only what is asked and avoid giving the other lawyer an opportunity to go on a fishing expedition, and the court reporter can only take down one response at a time, so if you start talking while the lawyer is talking, it disrupts the transcript.
If you don’t understand the question or don’t know the answer, say so
If you don’t understand what the lawyer is asking you, it’s ok to say, “I don’t know what you mean, can you clarify?”
It is fine to confirm you do not know the answer to a question you are asked. Do not guess.
When you should stop talking
If the other lawyer asks you an improper question, your lawyer will jump in. Before the examination for discovery starts, your lawyer will tell you how they will signal when you should stop talking because they are going to object to a question. Typically, they may touch your arm or say, “Don’t answer that.” If this happens, STOP talking, even if you are in the middle of a sentence.
The reason your lawyer may want to stop you is that they want to object to a particular question or line of questioning. Sometimes this happens if the other side is trying to get you to give your opinion on what you think the law is. Sometimes the question is inflammatory or inappropriate, and your lawyer will step in to protect you. Let them do their job.
Tell the truth and be accurate
It may seem obvious, but tell the truth and be as accurate as you can. The transcript of your examination can be used by the other side in their submissions to the court. If you lie, misrepresent or exaggerate in your answers you may come across as untruthful or unreliable, and the other side can use this impression to try to damage your credibility.
Don’t guess at an answer or speculate. Many people have a strong urge to try to answer whatever they have been asked, whether the question is reasonable or not. If you can’t remember the details of a particular situation, it is okay to say, “I don’t remember.” The lawyer may ask you to inform yourself about that aspect of the case and respond later, and that’s fine. But don’t try to construct an answer just because you feel obliged to answer.
Keep your answers short and to the point. If the lawyer for the other side wants more detail, they will ask.
Your lawyer will prepare you for your examination for discovery and you should not hesitate to ask questions about the process of you have concerns.
We are pleased to welcome family lawyer Diana Adam to our Edmonton office.
With a background in family and civil litigation, Diana is a confident and committed associate who passionately advocates for her clients every step of the legal process. Diana recognizes the emotional toll family disputes can take. She approaches her client’s issues with a balance of care and candour that is necessary to ensure that they have full information about the process and their options.
In addition to her legal expertise, Diana has a background in psychology and sociology from the University of Windsor. She draws on her prelaw skillset to help her clients stay calm and focused as they navigate the events of a separation and divorce.
Diana practices all aspects of family law, from prenuptial agreements to post-divorce modifications. While armed with the skills necessary to provide resolutions through negotiation, Diana is also a decisive lawyer with the confidence and experience to take a matter to court if that is the best way to achieve results for you and your family.
The growing ubiquity of electronic communications over the past two decades has had a profound impact on the way we practice law. No longer are we sending letters to opposing counsel by mail or courier; rather, emails ping back and forth at lightning speed. More than just impacting the practice of law, however, the subject matter has changed enormously as a result of technological advancement. We are now confronted with another major leap forward in the way business is conducted and money changes hands as a result of an innovation that has flooded the media and public consciousness: decentralized cryptocurrency.
Blockchain cryptocurrency allows the anonymous transfer of money without oversight or control of a governing body. Cryptocurrency is decentralized, meaning that it is not regulated by a central authority like a traditional currency, and new units and transfers are recorded in a general ledger known as the “block chain”, which is stored in multiple computer systems. The blockchain can be viewed by anyone, but attributing transfers to any individual is difficult or impossible as transfers are identified by address (a series of letters or numbers) rather than by name. A person can have multiple addresses. Transfers of cryptocurrency can be made between individuals or through a cryptocurrency exchange. Some well-known cryptocurrency exchanges include Coinbase, Binance, Bittrex, Kaken, Bitfinex.
A remarkable feature of cryptocurrencies is that they can be “mined” from the system which is programmed to award new bitcoins to miners who solve highly complex math problems. Mining operations utilize computers to mine new units and receive deposits of cryptocurrency into accounts.
The Division of Crypto Assets in Family Law Proceedings
There is no question that cryptocurrency constitutes property which, if it meets the criteria for “family property” pursuant to s.85 of the Family Law Act, S.B.C., C. 25, would be subject to division upon marriage breakdown. Further, mining operations that result in the acquisition of new units could be quantified and included in a payor’s income for the purpose of calculating child and spousal support pursuant to the Federal Child Support Guidelines and the Spousal Support Advisory Guidelines.
Due to the anonymity afforded to cryptocurrency miners, and the fact that the record of transactions is decentralized, obtaining disclosure of cryptocurrency holdings and income-generating activities will prove to be a major challenge for family lawyers for the foreseeable future. In many cases the only way to show that the spouse has undisclosed cryptocurrency holdings will be to look for evidence such as a pattern of spending that exceeds disclosed income, and then ask the court to draw an adverse inference or to impute income to the payor. However, it is not uncommon for a payor to depress their spending until property division and support have been set by agreement or court order.
The valuation of cryptocurrencies also poses a substantial challenge. The exchange rate of cryptocurrencies is extremely volatile, making pinpointing the market value on any particular date a challenge. Values can change on an hourly basis. In British Columbia family law, the relevant date for valuing property for the purposes of property division is the date of the agreement or trial, pursuant to s.87 of the Family Law Act. One can imagine the difficulty of determining market value of a cryptocurrency where the value has changed several times in one day.
Cryptocurrency Earnings and Support Payments
An even greater difficulty arising from the volatile exchange rates is determining the quantum of income to be attributed to a payor who mines cryptocurrency or receives cryptocurrency as income. Without a stable exchange rate, how can the courts determine the quantum of income for the purpose of calculating child and spousal support? Section 17(1) of the Federal Child Support Guidelines provides that a court may determine a payor’s income that is “fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.” However, while the court has the legal authority to make a determination, how to go about it in practice will be quite a challenge for our courts.
As the legal world struggles to catch up, cryptocurrency will continue to pose challenges for many areas of law, including tax law and contract law. British Columbia family lawyers will be watching to see how the courts handle cases with cryptocurrency as their subject matter.