Monthly Archives: December 2013

Upon Separation What are My Entitlements to Assets?

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Upon Separation What are My Entitlements to Assets?

Question: Upon Separation What are My Entitlements to Assets?

Answer: In British Columbia, there is not as big a distinction in the law as it applies to married and unmarried couples and same sex partners.  Subject to a written agreement to the contrary in the proper form known as a Family Law Agreement, married couples, including those of the same sex and hetro-sexual spouses, are entitled to share in 50% of the value of all family assets as determined by the Family Law Act.

For those who are co-habitating and not married or are co-habitating in a same sex relationship they have the same rights as if they were married spouses if they have been living together for at least two years before they separate. For others not within these definitions there is no Statute, which guarantees any entitlement to them.  Instead, they must rely on the concept of common law gift and trust claims to assert and prove an entitlement.  There is no guarantee they can do this easily.

Unlike other provinces in Canada, British Columbia has what is known as an in rem property system or one that gives each party (referring to married people of the same sex) an entitlement as a family property asset to a ½ interest in every property they own or in which they have a beneficial interest (someone else is the registered owner but is holding the equity for the spouse) in their name or their spouses name or to which their spouse is beneficially entitled on the date the parties separate which is not defined to be an excluded asset by the act. With regard to excluded property spouses will share equally any increase in value of the excluded property. If there is no increase in the value of excluded property there is nothing to share. The onus of proving an asset is excluded is on the spouses stating this. Also if equity is received by a spouse from something which would have been a family asset is placed in another asset which would be excluded that asset becomes a family asset upon separation.

An important note if you are unmarried and in a common law relationship your entitlement to make a claim to family assets is limited to two years from the date of separation and two years from the date of divorce if you were married. Therefore, you should act quickly upon separation to contact a family lawyer like the ones at Dubas and Company to pursue your claims and understand what they can be.

 

Is a separation better than going to court?

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Is a separation better than going to court?

Question: Is a separation agreement better than going to court?

Answer: In British Columbia parties have a choice of whether or not they go to Supreme Court or Provincial Court with respect to some issues. If parties are not seeking a divorce and simply want to deal with the issues of custody, access and support, they can proceed in Provincial Court. Some people believe this can be more cost effective as there are no filing fees and they can make use of family law mediators from the government free of charge. As with all mediation however, people should be aware of their rights before attending a family law mediator in Provincial Court because once they have agreed to an Order or filed an Agreement in Provincial Court, it will likely be impossible to have it reviewed.

The Supreme Court of British Columbia is the only court in the province, which can deal with divorce and asset division. It also has jurisdiction to deal with custody and access matters, child support and spousal support under both the Family Relations Act and the Divorce Act. As well, it is often the better forum because document disclosure is required pursuant to the Rules of Court in a much broader way than in Provincial Court and other discovery mechanisms are available in Supreme Court and not Provincial Court. Further, if there is property at issue or a divorce at issue, because the Provincial Court cannot deal with these matters, if you commence an application in Provincial Court you may find that later on you have to commence an action in Supreme Court to deal with assets or a divorce, which can lead to having to fund two law suits on the same matter.

In the Provincial Court, it is mandatory to go to mediation through the court mediator prior to having an application heard. Similarly in Supreme Court, except for very limited Orders, it is required to go to a Judicial Case Conference prior to setting any applications for hearing. At the Judicial Case Conference a judge of the court presides and parties attend with their lawyers to discuss the case. The judge will provide some input as to what they think is a reasonable outcome and may assists the parties in coming to settlement. The process is informal and is off the record. This means that nothing said at the Judicial Case Conference can be used in court in the future. By consent of the parties at very little expense, the judge at the Judicial Case Conference can make any Order temporarily or final that the parties agree to. Further, the judge can make procedural directions to ensure the court process proceeds in a proper way. This can involve things like setting a trial date, granting orders regarding document disclosure and setting down times when things in the process will be accomplished by the parties like when various applications will be heard. The choice of forum is important and counsel should be consulted before you decide where to start your case. You must also bear in mind that even if you start a case in court you can still resolve it at any time with the assistance of counsel or on your own if you do not have counsel. Many court procedures like the Judicial Case Conference are set up to promote settlement because the judges themselves see the value to a settlement process, which weeds out cases that can be resolved and stream lines those cases which remain.

Should I get a prenuptial agreement (family law agreement)?

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Should I get a prenuptial agreement (family law agreement)?

Question: Do I need a prenuptial agreement before I get married?

Answer: For people who qualify as spouses under the Family Law Act  because they are married or have  cohabitated in a marriage like relationship upon separation there is a presumption that each party will have a 50% interest in all family property in the name of the other party and in their name. This is subject to a Family Law Agreement to the contrary.

A Family Law Agreement is an agreement between two people who are about to enter into a marriage like relationship where they anticipate becoming spouses or have acquired, for the purpose of dividing assets or pensions under the Family Law Act, the status of spouses which agreement these two people wish to be determinative of the division of their assets and debts. upon separation instead of the provisions of the Family Law Act. These agreements can also determine, if the parties wish it, how spousal support will be determined or whether or not a spouse can apply for support. The agreement is signed by both spouses and at least one party witnessing their signature. It is almost always better to have an agreement if you are contemplating living with another person to establish what will occur if your relationship does not work out. In this way you can ensure certainty and avoid costly litigation when a relationship ends. Under the new Family Law Act agreements are encouraged more than ever before and if properly negotiated and drafted will almost always be upheld by the court. They are now definitely the way to go if possible.

Historically if these agreements were entered into prior to the commencement of a relationship they were referred to as pre-nuptial or ante-nuptial agreements and if they arose during cohabitation they were referred to as cohabitation agreements. If they occurred after separation they were referred to as separation agreements. These distinctions and names are not any longer that important under the new act because all such agreements which are in writing and witnessed by at least one person and finally divide assets between spouses or potential spouses are defined to be Family Law Agreements.

How do I determine entitlements to child support and spousal support?

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How do I determine entitlements to child support and spousal support?

Question: How do I determine entitlements to child support and spousal support?

Answers:

Determining entitlements to child support?

As a general proposition, a parent who is the biological parent of a child has an obligation to support that child while the child is under legal age, which in British Columbia, is under the age of 19. This is the obligation of both parents under both the Divorce Act and the Family Law Act.  This applies whether or not the parties are married or unmarried. Support is generally payable by a parent who does not have the child living with them at least 40% of the time. Basic support is based upon the income of the paying parent, generally from the total income on their tax return for the prior year, but this can vary depending on the circumstances. Support will also vary depending upon the amount of children each couple has with the paying parent paying more as their income rises or their children increase in number. The actual support amounts are taken from a table published by the government of Canada as part of the Child Support Guidelines. Step parents can also be obligated to pay support for step children provided the application is made in a timely way but this is a secondary obligation most often to biological parents. Both parents have an obligation to support their children and this is reflected in the table amount.

The Court can also make an Order with respect to extra-ordinary expenses.  These additional child expenses are those, which are necessary and reasonable.  In determining what is reasonable, the Court will look at how the parties lived prior to separation and all of their financial resources at the time of the application.  Certain expenses like daycare, medical expenses, insurance premium expenses, private school and post secondary school expenses along with extracurricular activities are included to this category but do not necessarily exhaust what could be an extra expense.

Determining entitlement to spousal support:

Pursuant to the Divorce Act and the Family Law Act, a spouse can apply for both interim and final spousal support.  This entitlement arises under the Divorce Act simply because the parties are married. 

Under the Family Law Act, same sex couples and common law couples who are in a marriage like relationship for a period of 2 years can apply for an Order of spousal support from the other party.  If a person is applying for spousal support under the Family Law Act, they must do so within 2 years after they have ceased living together in that minimum 2-year relationship or within 2 years of having a child with the other person if they did not live together or within two years of their divorce if they were married.

There are two components to establishing support. One is entitlement and the second is duration and amount. Entitlement is generally established based upon the parties having an implied or actual agreement that support be paid based on the circumstances in their marriage. The second approach involves an assessment of the roles assumed in the marriage and a loss suffered by either spouse which needs to be compensated for and finally the last approach is purely based upon need that one spouse has because of the impact of the marriage breakdown leaves them with insufficient funds to have a reasonable standard of living related to what existed during the marriage. Spousal support is not guaranteed simply because parties are in a relationship but it is fair to say that the longer the relationship the more likely it is that spousal support will be granted and in long term marriages quite often there is an equal sharing of income after the marriage ends.

The amount of support varies in each case dependent upon the parties means and needs. This includes a broad analysis of the parties assets, liabilities, expenses, and income from all sources. If you feel you are entitled to support you should communicate with us for an analysis of your entitlement and likewise if support is being requested from you, you should contact us to ensure you are not paying an inappropriate amount of support. The Support Advisory Guidelines establish a range of support under various scenarios which is generally to be applied by the courts in resolving matters.

How does court decide about custody and access?

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How does court decide about custody and access?

Question: How does court decide about custody and access?

Answer: Both custody and access under the Divorce Act (Canada) and Guardianship and parenting time and contact are determined by what is in the best interests of the child under both the Divorce Act Considerations will vary in each case based upon your circumstances but with respect to these matters the following considerations will generally apply:

a)     The willingness of each parent to facilitate a relationship with the other parent;

b)    The history of the child’s care and need for stability given the child’s stage of development and age;

c)     The nature and strength of other relationships in the child’s life;

d)    The ability of the parties to communicate effectively for the benefit of the children;

e)     The desire to maximize the contact of each parent with the children after the parties separate;

f)     The living arrangements of each party and each party’s ability to care for the children and ability to exercise responsibilities for the child during guardianship, parenting time or times of contact;

g)     The special, emotional, and other needs of individual children including those needs that relate to education, medical care, and individual, physical or emotional challenges;

h)    The impact of family violence on the child’s safety, security and well-being whether or not the violence is directed to the child or another family member and whether or not the perpetrator of family violence is impaired in their ability to look after the child;

i)      The views of the child unless inappropriate;

j)      The child’s health and emotional well being

As indicated which factors are critical in any case will depend on your situation and as such, you should consult a lawyer prior to making any final decisions on custody. We are well placed to assist you in this respect. The parenting plan achieved can be subject to a written agreement or court order.

What is shared parenting?

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What is shared parenting?

Question: What is shared parenting?

Answer:  The concept of shared parenting is one wherein the parents split the care of the child into blocks of time usually fairly equally and share joint custody and guardianship. In this model they both remain equal partners in raising the child. This sort of arrangement can be challenging but beneficial for the child because both parents maintain an active role in the day-to-day life of the child. For this situation to work the parents must be able to communicate very effectively, live in close proximity so they can easily transport the child to school and between households and both have a work schedule computable with a large time commitment for the child. The child as well must be able to cope physically and emotionally with having two primary homes. These sorts of arrangements are becoming more frequent and should be given consideration when both parents have been very active in the lives of their children.

A parenting arrangement is a plan related to how guardians of children (usually the child’s parents) will look after a child. It can be as detailed or as general as required but it will generally include directions either by agreement or court order as to where the child will reside, who will have day to day control of the child, how the child will be looked after, where they will go to school, what exposure the child will have to various culture inputs, who will see the child and how frequently and in what circumstances and what sporting and extra-curricular activities the child will be involved in.

What is (separation & divorce) mediation?

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What is (separation & divorce) mediation?

Question: What is mediation?

Answer:  Mediation is a process by which parties who could otherwise go to court to resolve a dispute determine they will go to a neutral third party with or without lawyers to see if they can resolve a dispute. Often what occurs is the mediator selected will often be a family law lawyer with many years of experience. Routinely parties would share the cost of   the mediator’s services. The mediator’s role often involves assisting the parties to narrow or resolve issues or the entire dispute. The mediator can often assist the parties by providing a view of what might happen if they went to court. In many mediations parties still have independent counsel who assist in marshalling the facts and taking negotiating positions to the mediator with the ultimate goal being seeking common ground and a settlement without going to the expense and uncertainty of court proceedings.

Should I leave the home prior to getting a divorce?

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Should I leave the home prior to getting a divorce?

Generally your claim over the matrimonial home is not affected by your decision to leave the home. However, people can live in the same home and still be separated so long as they are living separated lives in this environment. It is often important to remain in the matrimonial home for a variety of reasons.

These include but are not limited to maintaining a relationship with your children, maintaining the residence, and maintaining your financial stability and minimizing expenditures.  On the other hand, it may be worthwhile to leave the matrimonial home if you can afford it, as it often relieves tension between the parties.  If you leave the matrimonial home, this will not impact on your rights and entitlements to share in the assets.  This decision can affect your relationship with your children and what the results may be for custody.

Provided that you are a joint owner of a property or defined as a spouse under the Family Law Act, you can apply for exclusive occupation of the matrimonial residence and use of the contents.  A spouse is somebody who is married or has been living with the other party for a period of at least 2 years in a continuous relationship who is not married.

The residence at issue can be owned or leased by one of the parties or both parties.  It is not guaranteed that a person will receive exclusive occupancy.  The person applying for exclusive occupancy will have to establish that shared use of the home is a practical impossibility and that the applicant is on balance the preferred occupant.

Can I begin dating before I get a divorce?

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Can I begin dating before I get a divorce?

Question: Can I begin dating before I get a divorce?

Answer: You can begin dating before you get a divorce. As there is no fault divorce in British Columbia from a strict legal perspective this should have no or little bearing on the outcome of your case. However, if you make this decision you should use discretion in your disclosure of this fact. A new relationship often causes an emotional reaction for children and former partners that can often make cases more difficult to resolve by consent and further at times this decision can have an impact on determinations of child custody and access.

How quickly can I get a divorce?

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How quickly can I get a divorce?

Question: How quickly can I get a divorce?

Answer: If you have no children and there are no disputes about asset division, you can usually obtain a divorce in British Columbia within three to four months. It will take longer if the other person resides in the United States or outside North America. These types of “uncontested divorces” are handled without court appearances and we can prepare the documents on your behalf. Usually this will require only one or two meetings with us.