Preparing for Divorce
Your First Step - Getting Legal Advice
One of the most important decisions anyone makes is the decision to get married or the decision to live with someone in a permanent relationship. An even more difficult decision is the decision to end such a relationship. Once you've decided to end a relationship or if you are thinking about doing so, unless there is some emergency reason to do so, simply leaving your home unprepared is often not a good decision.
The reason is not because this may change your entitlements to the property or with respect to other issues, but because this decision can often, at least initially, determine how the dispute will proceed and what financial pressures you will be under prior to the dispute getting resolved.
For example, if you have a limited income you may not be able to afford to live separate and apart from your partner. As well, if the accommodation you are currently living in has suitable space (e.g. a basement suite) it may not be necessary to physically separate unless there are significant problems within the home that make it impossible for you and your estranged spouse to live together, the court has no legal authority to force you or your spouse to leave the home.
As well, as is discussed under our topic Interim Possession of the Home, it may be possible for you to have the other party removed from the home, pending resolution of the dispute. Perhaps the best thing you can do, prior to separating, is to obtain legal advice on your rights and entitlements upon separation and divorce. You can contact us for this assistance.
Often people become quite distressed when they become separated as to what will happen with their children and how they will deal with their spouse. The court system and the provincial government have recognized this problem and encourage parents as a first step upon separation to take the Parenting After Separation Program which discusses these issues. For more information about Parenting After Separation click here.
We do not charge for the first 20 minutes of our first initial consultation.
Call 604-697-9107 to set up an appointment.
Document Control & Maintenance
If you have heard the phrase that a picture is worth a thousand words, in the context of your separation and divorce you should understand that documents are power and can often determine who will have the most positive outcome in a family dispute. Quite often people do not remember things the same way or sometimes tailor their evidence to gain a benefit in a family dispute. Unlike people, documents generally speak for themselves and once they are created cannot be changed. So when people go to court and the court has difficulty determining which party is telling the truth they often make findings about the truth based on the documents for this reason. It is therefore important that you maintain and keep secure all of the documents that you have or can obtain with respect to the important issue in your dispute. This will involve documents which will address who is better capable of looking after children, who will disclose the party's incomes, their assets, liabilities and expenses. Alt hough the documents that are important vary in each case some documents you should think about maintaining are the following:
a) All report cards and mediacl records for your children or anything addressing his/her functioning or which show a custodial preference;
b) Any medical records about yourself, which would relate to your ability to earn income or parent a child;
c) All bank account statements that you have in either of your names or in the name of another person or which are held by another person for either of your benefit:
d) All investment account statements, GIC statements, term deposit statements that are held in either name or in the name of either of you and another, or held by a third party for either persons benefit;
e) Any and all property tax statements, mortgage statements, or property ownership documents with respect to any real property in either parties name, in the name of you and another, or held by someone else for your benefit both in Canada and abroad;
f) Any investment account statements, Canada Savings Bond statements or certificates, RRSP statements, pension statements held in either parties name, in the name of each of you and another, or held in the name of another for any benefit;
g) Any and all credit card statements, loan statements and or line of credit statements for this period of time;
h) Any mortgage statements with respect to any property as described above;
i) The financial statements and or tax returns from any business interests that either of you have has or that is held for either parties benefit whether the benefit, is paid by way of proprietorship or share interests;
j) Any and all rental documents with respect to any real property held in your clients name, in the name of you or another or held for your benefit, including without limiting the generality of this term any lease agreements, rental cheques, tax statements, and any applicable utility bills;
k) Any invoices for child related expenses, any bills for expenses relating to your children, and any documents determining who will be responsible for these expenses such as e-mails;
l) Any correspondence and emails between you and the other party;
m) Any property tax assessments you have for a property owned or diposed of by you and/or another party:
n) Your income taxe returns over the relationship and any assessment notices complete with attachments, if possible;
o) Any contracts of employment and/or pay stubs; and
p) Any information respecting travel for any children in your care that is anticipated in the future, which may may need to addressed in these proceedings
The Responsibility For Children
One of the other considerations, if you have the responsibility for children, will obviously be their security and maintaining their comfort. In this respect, it is difficult to provide you with any precise guidelines without knowing your circumstances. However, you should review the section of our website dealing with the determination of custody, guardianship, and access, to formulate your initial planning with respect to these issues. By and large, however, courts will generally want to maintain the stability of children in their home, especially younger children, and with older children, generally over the age of 10 or so, the court will be keenly interested on which parent they want to live with on a final basis. Ensuring that these older children's views are considered or respected even prior to separation can be a vital consideration for you. Ensuring that these older children's views are considered or respected even prior to separation can be a vital consideration for you. The children too will likely appreciate maintenance of the status quo situation where they can remain living nearby, their friends and their school, with minimum disruption. However, again, facts and circumstances will vary and this is why it is important that you have the assistance of qualified counsel, like us, to address these considerations.
Ways To Resolve Your Dispute
General Comments
Your separation is likely a highly emotional time for you. Although your friends and family always want to give you advice they do not know the legal entitlements that a person who is departing has or all of the circumstances that are important to your case. Your children, your tax situation, your debts, your asset base and your contributions to your relationship are unique and the solution will be unique to these circumstances. We can assist you with the use of mediation services and court proceedings to come to a proper resolution of your dispute. Mediation is a process by which the parties breaking up go to a 3rd party (often a lawyer or counsellor) to discuss and resolve their dispute. The court process involves making an application in either Supreme Court or provincial court in order to resolve your dispute. Which forum you choose will depend upon your circumstances like whether you have significant assets, or require a divorce or need to save additional costs. To learn more about these topics please click on the links below:
Getting Divorced
The Divorce Act determines when people can get divorced. It also grants jurisdiction to the court to grant relief related to custody, child support, and spousal support on a temporary or final basis. People can be granted an immediate divorce if the other spouse commits adultery or treats the other party in a cruel way. After parties separate for one year either one of them can apply for divorce. To learn more about divorce click on the links below;
The Importance of Pre-Nuptial Agreements and Separation Agreements
Same Sex Marriage
Pursuant to the law that regulates marriage two people of the same sex can now get married. Once they are married they have the same entitlements upon marriage breakdown to divide their assets and address custody access, child support and spousal support as divorcing parties of the opposite sex.
Unmarried Relationships
(Common Law Spouses)
People often say that if they are living in an unmarried relationship or common law union their rights are the same as if they were married. This is false. There is no more untrue statement. For example as a result of being married you can apply for spousal support at any time after the marriage breaks down. If you are unmarried you can only apply for support if you have lived together for 2 years and you apply within 1 year of the separation. If you are married upon divorce you are entitled to a 50% interest in family assets subject to specific considerations. If you are unmarried you must prove an entitlement to share in assets based on certain legal principals and your contribution to assets. There is no guarantee you will receive anything by way of asset division. Unmarried spouses have other benefits that depend upon legislation and in some cases they do not receive any benefits at all.
The Restraint of Property for Unmarried Couples
Custody & Access
Custody vs. Guardianship
At law Guardianship of a child relates to all activities of a child including major decisions like where they will go to school, who their doctor will be and what medical treatments they will be involved in and how their property will be dealt with. A portion of guardianship entitlements relating to the day to day decision making with respect to a child like where they will live, who they will see, when they go to school, when they will see their doctor, what they will wear, what time they will go to bed relates to custody.These two concepts are intertwined and people often refer to them as custody. A should custody order is where one parent gets to make all the decisions with respect to a child. A joint custody order is one where parties have to agree on decision making unless the courts provide otherwise in an order. If parties have lived together with their child they will share joint custody and guardianship until a court states otherwise. If the court is determining who should have custody or access they do so by considering the best interests of the child and under either the Divorce Act or the Family Relations Act. The decisions are made on an interim or temporary basis and on a final basis after a trial.
For more information on Custody & Access click on the links below
Interim vs. Final Applications for Custody & Access
Custody & Access Reports/Section 15 Reports
Variation Applications and Mobility Issues
Spousal Support
Pursuant to the Divorce Act and the Family Relations 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 Relations 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 Relations Act, they must do so within 1 year after they have ceased living together in that 2-year relationship. The manner in which support is determined by the court is fairly uniform under each piece of legislation. The court will look at entitlement to support based upon various models being the contractual support model, compensatory model and non-compensatory support model. Once entitle met is determined the court will set the amount of support based on the parties living standards, the applicants needs and the payers ability to pay. Support can be applied for before trial on an interim basis and at the end of the access at the end of the trial on a permanent basis. The court will look at legislative guidelines known as the spousal support guidelines in determining the amount of support but unlike the child support these guidelines are not binding. For more information on Spousal Support click on the links below:
Interim vs. Permanent Applications
The Importance of a Release of Support and Separation Agreements
Asset Division
In British Columbia, there is a distinction in the law as it applies to married and unmarried couples and same sex partners. Married couples are entitled to share in 50% of the value of all family assets as determined by the Family Relations Act. For those who are not married or are in a same sex relationship, 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 and there is no magic number of years of married cohabitation that will result in any defined entitlement as with married couples.
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 to a one half interest in every family asset whether or not it is in their name on the happening of what is known as a triggering event.
It is also important to note that as spouses in same sex relationships are now entitled to marry under the Marriage Act (Canada), they are included within the definition of spouses to which asset division applies under the Family Relations Act and they have the same entitlements and obligations as opposite sex married couples under the Family Relations Act with respect to asset division and other applicable matters.
Section 67 - Restraining Orders
How Are Assets Valued and Transferred?
Applicability of Common Law Principles to Married Spouses
Soul Occupation of the Matrimonial Home
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 Relations Act. This applies whether or not the parties are married or unmarried.
Under the Divorce Act, a stepparent who is found to have a significant relationship with a child living with them who is not their biological child can have the same obligation to support that child as if they were their biological child.
Under the Family Relations Act, a stepparent has an obligation to pay support for a child whether or not they are their biological child where they have married the child�s primary caretaker or resided in an unmarried relationship with the child�s primary caretaker for a period of two years (i.e. resided with the child) and have contributed to the financial support of the child during this time and the application for support is made within one years of the two parents ceasing to live together.
The obligation of each parent to support a child under 19 is mandatory under the Divorce Act of Canada and the Family Relations Act unless it is established that the child has removed themselves from the charge of the parents. Once the child is 19 years of age support will terminate unless it is determined that they cannot remove themselves from the charge of their parents. The concept of who is under a parents charge involves a consideration of whether or not the child is living independently and making their own decisions with respect to their life. The central determination, however, is often whether they can financially support themselves. Another key consideration is whether or not they are maintaining a relationship with either or both parents. The amount of support payable for a child depends upon how much the person who has to pay support makes. Generally this is determined by their general income on their tax return and reference to a schedule based upon income and the number of children at issue.
If a child lives with each parent at least 40% of the time the court is empowered to reduce the amount of support or eliminate it. If the court finds undue hardship by the assumption of marital debts or based on other considerations it can also change the table amount of support? To learn more about child support in a variety of circumstances click on the links below.
A Child Support Calculator can be found in the resources section of this website.
Basic Support and Who Has To Pay
Obligation to Support a Child Over the Age of 19 or the Legal Age
Tax Deductibility of Child Support
Deviation from the Guidline Amount
Extra Expenses and How They Are Calculated
Variation Applications Respecting Child Support