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Behaviour, Boundaries and Privacy after Separation

2021-07-30T21:37:17Z

Alise Nelson: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

*pay the fees and expenses incurred by the other side,
*pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions, or
*pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''[[Family Law Act]]'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

*striking all or part of a claim or an application,
*requiring someone to attend counselling,
*restrictring communication between the people involved in a court proceeding, and
*requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

*assault, battery, and sexual assault,
*nervous shock and intentional infliction of mental distress,
*trespass,
*invasion of privacy and breach of confidence, and
*defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarrassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/8q3k Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce act]''
*''[https://canlii.ca/t/7vf2 Criminal Code]''
*[https://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Divorce and Separation] from the website of the Department of Justice
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]
*[https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/1192 Family Mediation] from the website of the BC Ministry of Attorney General
*[https://www.clicklaw.bc.ca/resource/2816 Parenting Apart] from the website of the BC Ministry of Attorney General
*[https://www.clicklaw.bc.ca/resource/4342 Parenting Arrangements After Separation or Divorce] from the website of the Department of Justice

===Resources===

*[https://www.clicklaw.bc.ca/resource/4639 Separation & Divorce] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce"] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/2012 About Mediation] from Mediate BC Society
*[https://www.clicklaw.bc.ca/resource/1253 Mediation and Collaborative Practice] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/4126 "Coping with Separation" handbook] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/4402 "Successfully Parenting Apart: A Toolkit"] from the Canadian Bar Association
*[https://www.clicklaw.bc.ca/resource/4658 "An Inside Look at Family Mediation"] video from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/4884 Parenting After Separation] course from the BC Ministry of Attorney General

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T21:10:24Z

Alise Nelson: /* Legislation */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

*pay the fees and expenses incurred by the other side,
*pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions, or
*pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''[[Family Law Act]]'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

*striking all or part of a claim or an application,
*requiring someone to attend counselling,
*restrictring communication between the people involved in a court proceeding, and
*requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

*assault, battery, and sexual assault,
*nervous shock and intentional infliction of mental distress,
*trespass,
*invasion of privacy and breach of confidence, and
*defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarrassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/8q3k Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce act]''
*''[https://canlii.ca/t/7vf2 Criminal Code]''
*[https://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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Behaviour, Boundaries and Privacy after Separation

2021-07-30T21:09:23Z

Alise Nelson: /* Damages */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

*pay the fees and expenses incurred by the other side,
*pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions, or
*pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''[[Family Law Act]]'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

*striking all or part of a claim or an application,
*requiring someone to attend counselling,
*restrictring communication between the people involved in a court proceeding, and
*requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

*assault, battery, and sexual assault,
*nervous shock and intentional infliction of mental distress,
*trespass,
*invasion of privacy and breach of confidence, and
*defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarrassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T21:01:00Z

Alise Nelson: /* Conduct orders */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

*pay the fees and expenses incurred by the other side,
*pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions, or
*pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''[[Family Law Act]]'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

*striking all or part of a claim or an application,
*requiring someone to attend counselling,
*restrictring communication between the people involved in a court proceeding, and
*requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T21:00:44Z

Alise Nelson: /* Conduct orders */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

*pay the fees and expenses incurred by the other side,
*pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions, or
*pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

*striking all or part of a claim or an application,
*requiring someone to attend counselling,
*restrictring communication between the people involved in a court proceeding, and
*requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:44:03Z

Alise Nelson: /* Misuse of court process */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

*pay the fees and expenses incurred by the other side,
*pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions, or
*pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:43:31Z

Alise Nelson: /* Misuse of court process */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''[[Family Law Act]]'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:33:23Z

Alise Nelson: /* The consequences of bad behaviour */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#sec16_1 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:28:15Z

Alise Nelson: /* Protect yourself from bad behaviour */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

*smartphone, smartwatch, tablets, computers and other devices,
*home wifi router and personal hotspots,
*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
*wifi-enabled appliances, fixtures and outlets,
*internet, cable and telecommunication service providers,
*email accounts, social media accounts and gaming accounts,
*subscription-based accounts, like Netflix, Spotify and Crave, and
*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:26:36Z

Alise Nelson: /* Respecting boundaries, respecting privacy */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

*requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email,
*setting limits on the length of emails and letters,
*setting limits on the volume of communication in a given period, or the hours within which communication will be replied to,
*restricting the subjects that can be discussed,
*restricting the family members and friends who can be communicated with,
*fixing the time and place where the children will be exchanged, and
*setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

#smartphone, smartwatch, tablets, computers and other devices;
#home wifi router and personal hotspots;
#home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
#wifi-enabled appliances, fixtures and outlets
#internet, cable and telecommunication service providers;
#email accounts, social media accounts and gaming accounts;
#subscription-based accounts, like Netflix, Spotify and Crave; and,
#business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:24:52Z

Alise Nelson: /* Managing real life */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

*making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society,
*making bogus complaints about your ex to child protection services or the police,
*reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies,
*making complaints about your ex to their employer,
*badmouthing your ex in social, recreational or cultural clubs, and
*contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

#requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email;
#setting limits on the length of emails and letters;
#setting limits on the volume of communication in a given period, or the hours within which communication will be replied to;
#restricting the subjects that can be discussed;
#restricting the family members and friends who can be communicated with;
#fixing the time and place where the children will be exchanged; and,
#setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

#smartphone, smartwatch, tablets, computers and other devices;
#home wifi router and personal hotspots;
#home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
#wifi-enabled appliances, fixtures and outlets
#internet, cable and telecommunication service providers;
#email accounts, social media accounts and gaming accounts;
#subscription-based accounts, like Netflix, Spotify and Crave; and,
#business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T20:14:26Z

Alise Nelson: /* Managing online life */

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

*slagging your ex on Facebook, Instagram and other kinds of social media,
*leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors,
*publishing copies of letters, photos and personal notes online,
*publishing copies of affidavits and other court documents, and
*posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

#making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society;
#making bogus complaints about your ex to child protection services or the police;
#reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies;
#making complaints about your ex to their employer;
#badmouthing your ex in social, recreational or cultural clubs; and,
#contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

#requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email;
#setting limits on the length of emails and letters;
#setting limits on the volume of communication in a given period, or the hours within which communication will be replied to;
#restricting the subjects that can be discussed;
#restricting the family members and friends who can be communicated with;
#fixing the time and place where the children will be exchanged; and,
#setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

#smartphone, smartwatch, tablets, computers and other devices;
#home wifi router and personal hotspots;
#home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
#wifi-enabled appliances, fixtures and outlets
#internet, cable and telecommunication service providers;
#email accounts, social media accounts and gaming accounts;
#subscription-based accounts, like Netflix, Spotify and Crave; and,
#business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

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[[Category:JP Boyd on Family Law]]

Behaviour, Boundaries and Privacy after Separation

2021-07-30T18:06:38Z

Alise Nelson:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, [[Separation and the Law on Separation]], talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

==Introduction==

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — ''Marriage Story'' and ''War of the Roses'' spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate ''well''.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published [https://www.sciencedirect.com/science/article/abs/pii/0022399967900104?via%3Dihub a study] showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly compassionate and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

==Good behaviour, bad behaviour==

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on ''evidence'', and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

===Managing online life===

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

#slagging your ex on Facebook, Instagram and other kinds of social media;
#leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors;
#publishing copies of letters, photos and personal notes online;
#publishing copies of affidavits and other court documents; and,
#posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google ''you''.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

===Managing real life===

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the ''[[Family Law Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>

while section 16(3) of the ''[[Divorce Act]]'' says that the court must think about:

<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;</tt></blockquote></blockquote></blockquote>

The part about ''the appropriateness of an arrangement that would require the child's guardians to cooperate'' is really important. Think about it.

Among other things, you will want to avoid:

#making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society;
#making bogus complaints about your ex to child protection services or the police;
#reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies;
#making complaints about your ex to their employer;
#badmouthing your ex in social, recreational or cultural clubs; and,
#contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The ''[http://canlii.ca/t/7vf2 Criminal Code]'' has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

==Respecting boundaries, respecting privacy==

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

#requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email;
#setting limits on the length of emails and letters;
#setting limits on the volume of communication in a given period, or the hours within which communication will be replied to;
#restricting the subjects that can be discussed;
#restricting the family members and friends who can be communicated with;
#fixing the time and place where the children will be exchanged; and,
#setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

<blockquote>'''It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.'''</blockquote>

<blockquote>'''It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.'''</blockquote>

<blockquote>'''It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.'''</blockquote>

<blockquote>'''It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.'''</blockquote>

<blockquote>'''It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.'''</blockquote>

<blockquote>'''It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.'''</blockquote>

<blockquote>'''It is not okay to steal or make a copy of your ex's diary or personal journal.'''</blockquote>

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

==Protect yourself from bad behaviour==

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

#smartphone, smartwatch, tablets, computers and other devices;
#home wifi router and personal hotspots;
#home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
#wifi-enabled appliances, fixtures and outlets
#internet, cable and telecommunication service providers;
#email accounts, social media accounts and gaming accounts;
#subscription-based accounts, like Netflix, Spotify and Crave; and,
#business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at ''everything''.

==The consequences of bad behaviour==

I've already mentioned how the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. There are other potential consequences as well.

===Costs===

The Supreme Court has the ability to make "costs orders" under [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?autocompleteStr=supreme%20court%20family%20&autocompletePos=1#Part_16_Costs_521146 Rule 16-1] of the [http://canlii.ca/t/8mcr rules of court] used in family law disputes. An award of ''costs'' is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ''ordinary costs'' usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of ''special costs'', however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

===Misuse of court process===

Under section 221(1) of the ''Family Law Act'', the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

<blockquote><blockquote><tt>(a) has made an application that is trivial,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is conducting a proceeding in a manner that is a misuse of the court process, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) is otherwise acting in a manner that frustrates or misuses the court process.</tt></blockquote></blockquote>

If the court makes this order, it can also make the person:

#pay the fees and expenses incurred by the other side;
#pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
#pay a fine of up to $5,000.

===Conduct orders===

Under section 222 of the ''Family Law Act'', the court can make ''conduct orders'' if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

#striking all or part of a claim or an application;
#requiring someone to attend counselling;
#restrictring communication between the people involved in a court proceeding; and,
#requring someone to pay ''security'' into court, a cash deposit made to guarantee the person's good behaviour.

===Damages===

Claims in ''tort'' can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay ''damages'' to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. ''Punitive damages'' or ''aggravated damages'' are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

#assault, battery, and sexual assault;
#nervous shock and intentional infliction of mental distress;
#trespass;
#invasion of privacy and breach of confidence; and,
#defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[http://www.justice.gc.ca/eng/fl-df/divorce/index.html Department of Justice's website "Divorce and Separation"]
*[http://www.counsellingbc.com BC Counsellors by Practice Area]
*[http://bc-counsellors.org BC Association of Clinical Counsellors]
*[http://www.bcamft.bc.ca Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], 25 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-30T00:14:45Z

Alise Nelson: /* Legislation */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/8q3k Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce Act]''
*''[https://canlii.ca/t/5533n Criminal Code]''
*''[https://canlii.ca/t/52hdt Civil Marriage Act]''

===Links===

*[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]
* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

===Resources===

*[https://www.clicklaw.bc.ca/resource/4932 "Polyamorous Relationships and Family Law in Canada"] from Canadian Legal Information Institute (CanLII)

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T20:19:42Z

Alise Nelson: /* Resources */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/54wtd Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce Act]''
*''[https://canlii.ca/t/5533n Criminal Code]''
*''[https://canlii.ca/t/52hdt Civil Marriage Act]''

===Links===

*[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]
* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

===Resources===

*[https://www.clicklaw.bc.ca/resource/4932 "Polyamorous Relationships and Family Law in Canada"] from Canadian Legal Information Institute (CanLII)

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T20:14:28Z

Alise Nelson: /* Resources */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/54wtd Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce Act]''
*''[https://canlii.ca/t/5533n Criminal Code]''
*''[https://canlii.ca/t/52hdt Civil Marriage Act]''

===Links===

*[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]
* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

===Resources===

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T18:50:04Z

Alise Nelson: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/54wtd Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce Act]''
*''[https://canlii.ca/t/5533n Criminal Code]''
*''[https://canlii.ca/t/52hdt Civil Marriage Act]''

===Links===

*[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]
* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

===Resources===

*[https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y “Perceptions of Polyamory in Canada”] from the University of Calgary

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T18:49:22Z

Alise Nelson: /* Legislation */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

*''[https://canlii.ca/t/54wtd Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce Act]''
*''[https://canlii.ca/t/5533n Criminal Code]''
*''[https://canlii.ca/t/52hdt Civil Marriage Act]''

===Links===

*[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Resources===

*[https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y “Perceptions of Polyamory in Canada”] from the University of Calgary

===Links===

* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T18:46:30Z

Alise Nelson: /* Choosing a lawyer */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]''
* ''[http://canlii.ca/t/7vjx Old Age Security Act]''
* ''[http://canlii.ca/t/84l7 Employment and Assistance Act]''
* ''[http://canlii.ca/t/7vfd Canada Pension Plan]''

===Links===

* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T18:32:15Z

Alise Nelson: /* What have the courts got to say about all this? */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction, and
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Introduction_to_the_Legal_System_for_Family_Matters|The Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]''
* ''[http://canlii.ca/t/7vjx Old Age Security Act]''
* ''[http://canlii.ca/t/84l7 Employment and Assistance Act]''
* ''[http://canlii.ca/t/7vfd Canada Pension Plan]''

===Links===

* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Polyamorous Relationships

2021-07-07T18:31:14Z

Alise Nelson: /* Applying family law terminology */

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''.

This section provides an introduction to polyamorous relationships and how polyamorous relationships work in the context of family law. Because each province and territory has its own laws about who is entitled to parent children, ask for child support, ask for spousal support, and ask to divide property, the information in this page only applies to people who live in British Columbia. If you live outside of British Columbia and are entering or leaving a polyamorous relationship, you really must speak to a family law lawyer in your area for accurate information about how family law may impact you and your relationship.

==Introduction==

The social expectations associated with marriage are rather predictable. Although some people have open marriages, where each spouse is free to have relationships with other people, most of the time — the vast majority of the time — married spouses are expected to be emotionally and sexually faithful to each other. This expectation is so common that many married couples don't even talk about it. It's ''assumed'' that they'll be faithful to each other. We also expect that they'll provide emotional support for each other — "in good times and in bad, in sickness and in health," as the vow says — and work together as true partners, each making sacrifices for the benefit of the family as a whole.

While the people involved in a polyamorous relationship may share these expectations of their partners, they also may not. Polyamorous relationships vary in terms of the degree of mutual commitment, interdependence, and sexual and emotional fidelity people expect of each other. A polyamorous individual may be simultaneously involved in two or more romantic relationships, without those people being in a relationship with each other, or significant, committed relationships may exist among everyone involved. An individual may be involved in a core relationship with a number of other people that is committed and enduring, while one or more people in that core relationship are involved in peripheral sexual relationships with others. Or, an individual may be involved in a number of concurrent relationships that are more sexual than romantic in nature and involve a lesser sense of interdependence. It's safe to say that no two polyamorous relationships are exactly alike.

Polyamorous relationships have probably existed from the dawn of human history. Even though pair relationships have dominated Western culture since the days of the Ancient Greeks, polygamous marriages are permitted by law, and remain important parts of the cultural fabric, in many countries — particularly in western Africa and in nations governed by sharia law — and are socially accepted but neither legalized nor criminalized in still other countries. Polyamorous relationships, the unmarried cousin of polygamous relationships, are growing in popularity in North America and in Europe, and it appears that more Canadians identify as polyamorous today than ever before.

That being said, the exact number of Canadians who consider themselves to be polyamorous or are engaged in polyamorous relationships is unknown; Statistics Canada doesn't track polyamorous relationships in its population surveys. The limited information available from the United States suggests that in 2009, one in 614 Americans lived in openly polyamorous relationships while in 2010, one in 500 Americans identified as polyamorous. Research conducted by the [https://prism.ucalgary.ca/bitstream/handle/1880/107212/Perceptions_of_Polyamory_-_Dec_2017.pdf?sequence=1&isAllowed=y Canadian Research Institute for Law and the Family] in 2016 found that 82.4% of the 547 respondents to a national survey agreed that the number of people who identify as polyamorous in Canada is increasing, and 80.9% agreed that the number of people involved in polyamorous relationships is increasing.

Family law is relevant to people in polyamorous relationships just as it's relevant to people in other kinds of family relationship. If there are children, parenting and child support may be an issue. If an adult is dependent on others, spousal support may be an issue. If property has been purchased or debt incurred, the property interests may be an issue. However, you'll remember the discussion earlier in this chapter about how the rights and responsibilities family law talks about depend on how people fit into terms like ''spouse'', ''common-law partner'', ''parent'', ''guardian'' and ''child''. That's where things get difficult for people in polyamorous relationships. British Columbia's ''[[Family Law Act]]'', the federal ''[[Divorce Act]]'', and the family law legislation of the other provinces and territories are all written on the assumption that adult relationships only come in pairs, and figuring out how the square peg of polyamorous relationships fits into the round hole of pair relationships can be tricky.

===Bigamous and polygamous relationships===

"Bigamy" means being married to more than one person at the same time, and is a criminal offence under section 290 of the ''[http://canlii.ca/t/7vf2 Criminal Code]''. "Polygamy" means being married to more than two other people at the same time, and is an offence under section 293 of the ''Code''. (''Polyandry'', incidentally, means a marriage involving more than one man, while ''polygyny'' means a marriage involving more than one woman. The relationships you see on television in shows like ''Big Love'' and ''Sister Wives'' are polygynous marriages.)

Polyamorous relationships don't involve the marriage of the people involved, and aren't captured by either section 290 or 293 of the ''Criminal Code''. While pairs of adults in a polyamorous relationship may be married to each other, no one person is married to more than one other person at a time.

The other distinguishing characteristic of polyamorous relationships is that while polygamous marriages tend to be motivated by religious beliefs and revolve around men — ''Sister Wives'' is a very good example of these attitudes, and in fact polygamy was originally criminalized as a response to the historical spread of the fundamentalist Church of Jesus Christ of Latter-day Saints to which Kody Brown and his family are adherents — polyamorous relationships tend to be motivated by beliefs in the importance of freedom of choice, equality among the members of a relationship, and honesty.

===Applying family law terminology===

The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other."

Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>

We know that "marriage" is out for people in polyamorous relationships because of the definition in the ''Civil Marriage Act'', but you'll see that the definition of unmarried spouse in section 3(1)(b) of the ''Family Law Act'' doesn't have a number limit attached to it. In Alberta, on the other hand, section 3(1) of the ''Adult Interdependent Relationships Act'' says that an adult interdependent partner includes someone who has lived with someone else in a ''relationship of interdependence''. Section 1(1) of that act offers a definition of that awkward term and says this:

<blockquote><tt>“relationship of interdependence” means a relationship outside marriage in which any 2 persons</tt></blockquote>
<blockquote><blockquote><tt>(i) share one another’s lives,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) are emotionally committed to one another, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) function as an economic and domestic unit.</tt></blockquote></blockquote>

And there's that number limit again, "2 persons." But that's missing from the definition of "spouse" in section 3(1)(b) of British Columbia's ''Family Law Act''. To "live with another person in a marriage-like relationship" doesn't mean to live with ''just one other person''. The British Columbia definition means that a person can be in a spousal relationship with one person while being in a spousal relationship with someone else, and while being in a spousal relationship with someone else as well.

That's really important, because under the ''Family Law Act'', someone who is a "spouse" has the right to ask anyone else who qualifies as that person's "spouse" for spousal support and for the division of property and debt. On top of that, someone who is a ''stepparent'' — defined as the "spouse" of a parent — is a "parent" potentially obliged to pay child support for the benefit of the parent's child.

The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include:

*one or two people who intend to have the child,
*a donor of sperm,
*a donor of eggs,
*a surrogate mother, and
*the "spouse" of a surrogate mother,

for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child.

However, there's a workaround. While parents cannot make an agreement appointing someone who isn't a parent as a guardian of their child, the court can make orders appointing other people as a guardian of a child under section 51 of the ''Family Law Act'', and there is no limit to the number of people who can be appointed as the guardians of a child.

===What have the courts got to say about all this?===

Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved.

From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that:

#a child can have as many as six parents when the child has been conceived by assisted reproduction; and,
#a person can have more than one spouse at the same time.

We do have government policy that expects a child to have as many as three parents, because that's how Vital Statistics updated their forms when the ''Family Law Act'' became law. We also have cases where married spouses delayed getting divorced for long enough that they qualified as the unmarried spouse of the person they moved in with after separating from their married spouse — ''[http://canlii.ca/t/1v75j Austin v Goerz]'', a 2006 decision of our Supreme Court, is a good example of cases like this — but we don't have cases saying that people can have more than one spouse in other circumstances. Now, the plain language of the ''Family Law Act'' says quite clearly that a child can have up to six parents and that a person can have more than one spouse at the same time, but we haven't had a ''judge'' say that this is what the ''Family Law Act'' says.

==Family law agreements==

Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property.

Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this.

Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming.

Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives!

Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator.

Finally, it also seems likely that people entering polyamorous relationships, especially relationships that involve people living together, buying property together or having children together, would make plans for the management and termination of their relationship well ahead of time. A lot of the contact I've had with people in polyamorous relationships involves helping people plan and sign ''cohabitation agreements''. These agreements aren't particularly common, or particularly useful, for people in pair relationships, but they're indispensable for people in polyamorous relationships.

In my experience, polyamorous relationships rarely "just happen." They tend to be the product of a huge amount of discussion and negotiation — about easy financial and mathematical issues as well as super hard emotional and psychological issues — long before more than two people start seeing each other, never mind start living together. Since people are already spending so much time planning what their relationship will look like, it's easy to turn some of that effort into preparing a cohabitation agreement.

===Subject matter of cohabitation agreements===

For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well.

While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include:

*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children?
*Will the family live together in one home or in more than one home? How will the family home be bought or rented? How will the mortgage or lease be paid?
*How will the decision to make large repairs be made? How will those repairs be paid for?
*How will the decision to buy appliances and furniture be made? How will those things be paid for and who will own them?
*How will household chores be managed?
*How will household expenses be paid? Will everyone contribute to a joint bank account and, if so, in what amount? Equally or in proportion to people's incomes?
*If someone takes time off work for parental leave or because of illness, what happens to their financial obligations to the household?
*What will the rules be about seeing people outside the relationship? When can someone else spend the night, and does anyone have to agree before someone can spend the night?
*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change?
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave?
*What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them?
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions?
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns?

What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together.

===Managing negotiations with lawyers===

When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement.

The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement.

In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships.

Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want.

The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible.

This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer.

===Choosing a lawyer===

If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice.

The "[[You & Your Lawyer|You and Your Lawyer]]" section in the chapter on [[Introduction_to_the_Legal_System_for_Family_Matters|The Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]''
* ''[http://canlii.ca/t/7vjx Old Age Security Act]''
* ''[http://canlii.ca/t/84l7 Employment and Assistance Act]''
* ''[http://canlii.ca/t/7vfd Canada Pension Plan]''

===Links===

* [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support]
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"]
** See "Proving you're separated if you and your spouse still live together"

{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}}

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