Category Archives: Vancouver Divorce Lawyer

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.

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.

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.

Upon what basis can I get a divorce?

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Upon what basis can I get a divorce?

The three bases upon which a divorce can be granted are the following:

Adultery: A person has had sexual intercourse with another person since their date of marriage without the consent of their spouse;

Cruelty: One spouse has treated the other spouse either physically or emotionally in a manner, which renders their continued co-habitation impossible.  This conduct must be extreme and outside of normal arguments and contact.  Generally one is thinking of extreme emotional and physical abuse;

One year of separation:  The parties have lived separate and apart for over one year prior to the divorce being granted.  The parties generally will have lived apart for a year prior to getting their divorce.  This is usually the time they have been apart but could include times they were living under the same roof if prior to physical separation they had actually started to live separate lives.  The Court looks at all the factors to determine this.  These include but are not limited to whether parties are still intimate, interacting as a family unit and whether or not they still share finances.

Adultery and cruelty require independent corroboration to be founded.  This usually means having a third party or the offending party confirm conduct often in Affidavit form.  As what amounts to adultery or cruelty can often be subjective, these grounds are not now often pursued and the most common ground is one-year separation.