Frequently Asked Questions
DISCLAIMER: the following is provided for information only and does not constitute legal advice. For advice on your particular situation, we encourage you to contact a lawyer.
About Heather Dale Law
Heather Dale Law Offices specializes in a variety of family law issues, including asset division, spousal and child support, and custody and guardianship issues. Heather also has expertise in complex financial issues that often arise during divorces, such as complex property and income issues.
Yes, Heather Dale Law Offices can provide guidance and assistance with separation agreements, prenuptial agreements, and cohabitation agreements to help protect your interests and avoid future disputes.
Heather’s approach is to find the most beneficial and cost-effective resolution for her clients. She provides clear explanations of the law as it applies to each client’s case, so they can make informed decisions on how to achieve their objectives.
Yes, Heather Dale Law Offices offers mediation services for clients who wish to resolve their divorce or separation problems without going to court. As an accredited family law mediator, Heather can assist clients in finding a fair and reasonable solution.
Heather Dale Law Offices is committed to providing personalized attention to each client. With over 18 years of experience in resolving family disputes, Heather has the knowledge and expertise necessary to achieve the best possible outcome for her clients, whether through settlement negotiations, mediations, or litigation.
Separation, Divorce and Agreements
Section 183(2) of the Family Law Act (FLA) authorizes the court to make a protection order if family violence is likely to occur (or reoccur). Section 184(1) obliges the court to consider the following risk-factors: (a) any history of family violence by the family member against whom the order is to be made; (b) whether family violence is repetitive or escalating; (c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; (d) the current status of the relationship, including any recent separation or intention to separate; (e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence; (f) the at-risk family member’s perception of risks to his or her own safety and security; (g) any circumstance that may increase the at-risk family member’s vulnerability, including pregnancy, age, family circumstances, health or economic dependence. Section 186 (1) permits a person to apply for a protection order without notice to the other party. This section enables a person who is fearful of their partner to obtain a protection order before the other party even knows the application is started.
There are alternatives to going to court. Negotiation, mediation, arbitration and/or a collaborative law approach can enable the couple to resolve their separation or divorce issues without stepping foot in court. Ultimately you will need to apply to court for a divorce even if you settle all other issues by agreement (“all other issues” means parenting, support, property and debt division – also referred to as corollary relief). However, a divorce order alone is usually straight-forward and can often be obtained without an appearance in court.
- Negotiation can occur directly between the spouses or it can occur through lawyers. The most common approach is one party makes an offer to settle and the other party either accepts, rejects, or makes a counter-offer. This process continues until an agreement is reached. The parties then embody the terms of the agreement into a formal document such as Minutes of Settlement, a separation agreement, or a consent order. The final agreement can be enforced by the court.
- In family mediation, each party usually has his or her own lawyer and they also work with a neutral mediator who helps them come to an agreement, often on all aspects of their separation. A good family law mediator is well-versed in the law and skilled at assisting parties to bridge the two perspectives. Whether or not the parties’ lawyers attend the mediation itself, each party will consult his or her own lawyer before signing a final agreement.
- A family law arbitrator provides a service that can be compared to the parties agreeing to hire a private judge, whom the parties authorize to decide for them. The arbitrator must make a decision in accordance with the applicable law. The parties themselves decide how the arbitration will take place including whether or not their lawyers will be present. There are a standard set of rules of procedure that are generally followed which are much simpler than the rules for a formal trial. The parties are generally “stuck with” the decision of the arbitrator, though it can be appealed (to court) in certain circumstances. Unless appealed, the process of arbitration is private—unlike proceedings in court, which are open to the public.
- Mediation-arbitration (med-arb) is, as the name suggests, a combination approach. The parties engage one individual who is both a certified mediator and a certified arbitrator. That individual will initially approach the settlement by way of mediation. If the mediation becomes “stuck” on one or more issues, the individual will “switch hats” from being a mediator into being an arbitrator and will then make a ruling on the remaining unresolved issues.
- In the collaborative law scenario, each party retains his or her own lawyer who is trained in the collaborative process. The fundamental difference with collaborative law is that the parties and the lawyers sign an agreement at the outset that they will reach a settlement without court. If the parties cannot reach agreement and/or one or both parties decides to litigate, the lawyers must quit the case. During the process, the lawyers help the parties negotiate an agreement, sometimes with the input of neutral experts such as therapists and financial planners.
If both parties want a settlement without a judge deciding for them, they must find a way to agree. First, it is helpful to know exactly what issues are agreed and which are not. For example, the parties may agree to share parenting on a week-on week-off basis, but they do not agree on the division of assets. Second, it is crucial to have all of the relevant information before they can even begin discussing how to resolve the outstanding issues. For example, if the pot of family property includes a house and shares in a company, the value of the house and the shares needs to be determined before the parties can agree that one person gets the house and the other gets the shares. Third, once all the relevant information has been received, the parties must decide if they want to approach settlement by a “rights-based” approach or an “interest-based” approach.
A “rights-based” approach focuses on the legal rights of the parties and they approach the negotiations keeping in mind what they anticipate a judge might order. If they think they have a good chance of success at trial, they will likely “dig in”. Alternatively, if they sense they have a poor chance at trial, they may more readily “give in” to the other party’s demands. Unfortunately, when parties negotiate directly they may have a mistaken understanding of the possible outcomes. They may negotiate poorly as a result. Also, when negotiating, parties often overlook or underestimate costs of achieving their outcome at trial. An “interest-based” approach focuses on the underlying needs or interests of the parties and encourages a broader range of solutions to the dispute instead of purely legal interests. This approach can yield an outcome that satisfies the parties, but may not match legal standards or expectations.
Rule 5-1 of the Supreme Court Family Rules provides the framework for financial disclosure. When support is in issue, one or both parties must complete a Form 8 financial statement and provide copies of the required income documents, including (for the previous three years): personal income tax returns; personal notices of assessment or reassessment; if the person is self-employed, financial statements of the person’s business and a statement showing payments the business makes to friends or relatives. Other documentation is required in different circumstances as set out in Rule 5-1. Sections 21(1) and (2) of the Federal Child Support Guidelines (“FCSG”) mirror the requirements set out in Rule 5-1.
Neither Rule 5-1 nor the FCSG require a party to produce the underlying source documents to the financial statements. The obligation to produce these (or other relevant documents) is in Rule 9-1 (regarding production of documents). Rule 9-1(1)(a) requires each party to prepare a List of Documents that includes all relevant documents and all documents the party intends to refer to at trial. The party receiving the List of Documents may demand additional documents and if the demand is not satisfied, apply to court. On such an application the court may either order that the party is excused from producing the documents or order a party to list additional documents.
Under Rule 5-1(28), if a party fails to provide documents as required, the other party can bring an application and the court can order that the documents are produced on terms (for example by a certain date). In some circumstances, the court can order a third party in possession of relevant documents to produce the documents. There are many other orders the court can make if a party fails to provide relevant documents, such as strike out that party’s pleadings, punish that party for contempt of court, impose a fine, draw an adverse inference against the party, attribute income to that party, or make a costs order.
The adverse interest has been characterized by the court as follows:
Where a party has failed to make the required disclosure of assets or income, or fails to call a witness, such as their accountant, the court may draw an adverse inference against that party. The leading case with respect to non-disclosure is Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (B.C. S.C.), at paras. 6 and 8 where the following findings were made: a. the defendant had “ample opportunity to learn what was expected of him”; and b. the defendant failed to make “adequate disclosure of his financial dealings, both before and after separation”. The majority of the evidence was before the court only because of the plaintiff’s “tireless struggle” to locate assets. At paras. 10 and 11, the court described the non-disclosure of assets as “the cancer of matrimonial property litigation” and continued: It is not enough to respond to non-disclosure by an award of costs. Nor is it enough, in a case like this one, to deal only with what is known. Either of these approaches, or both together may still reward the non-disclosing litigant for his conduct, depending whether his concealment has been successful. I conclude that where there has been concealment of assets, it ordinarily should be held that the concealment is ongoing, that there are assets still undisclosed, and that the division of assets should be affected accordingly. At para. 12, the court stated: “The system should not give offence to the honourable litigant by treating the dishonourable litigant the same. There is an evidentiary basis upon which the court can reach the conclusion that the non-disclosing party is probably concealing assets. In Laxton v. Coglon, 2008 BCSC 42 (B.C. S.C.), at para. 27, the court held that: “once non-disclosure has been established, the non-disclosing party bears an onus of showing that there has since been full disclosure to the court”. The adverse inference approach does not constitute unequal property division or reapportionment pursuant to s. 95, of the Family Law Act (formerly section 65, of the Family Relations Act, R.S.B.C. 1996, c. 128). Rather it “simply operates to ensure equal division between the parties where the court is satisfied on the balance of probabilities that one party has not fully disclosed assets”: Laxton at para. 29.
Pursuant to Supreme Court Family Rule 10-6(7), an ordinary application to the British Columbia Supreme Court requires the applicant to give eight clear business days’ notice to the respondent. This eight days must be added on top of the time it takes to prepare and file the application and all the supporting material. However, if matters are urgent the applicant can apply pursuant to Supreme Court Family Rule 10-9 for an order on “short notice” (also referred to as “short leave” or an “urgent application”). The short leave rule requires the applicant to first make a preliminary application for permission to shorten the time as well as the main application. The court may permit the applicant to set the hearing sooner than the usual notice period and usually will (a) fix the date and time for the main application to be heard and (b) fix the date and time the service of the main application and response material.
Examples of situations that may require short leave include: when the well-being of child is at stake, or an important event or deadline is approaching. For example, short leave may be awarded if an offer to purchase the matrimonial home will expire, and one party opposes the sale while the other says it should proceed. Short leave may be denied if the court is not convinced the matter is urgent, or if the main application is voluminous or complex.
If there are issues regarding family violence, other methods to obtain an order quickly may be available. This will depend on the facts of the case, so you should consult a lawyer. Of course, if there is an immediate threat to anyone’s physical safety, call 911!
If the court has made an order that you are unhappy about, you must make arrangements to apply to the court of have the order varied, set aside or appealed (strict time limits apply to appeal options). You must not simply ignore an order. Even if you think an order is wrong, you must nonetheless obey it. “A court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed”: R. v. Wilson,  2 S.C.R. 594 (S.C.C.). “It is elementary that so long as … an order of the court remains in force it must be obeyed.” Paul Magder Furs Ltd. v. Ontario (Attorney General) (1991), 6 O.R. (3d) 188 (Ont. C.A.).
With this question, people are usually asking two things: 1. “is a legally binding contract?” which means both parties must follow it; and 2. “Will the court uphold the agreement if it is challenged down the road?” This is because the court not only considers “was it a binding contract?” but also considers whether it was obtained fairly and operates fairly. Where the court has found that a binding contract has been formed, and it was achieved and operates fairly, the court will be reluctant to second-guess an agreement.
- Contractual Principles: In order to ascertain if an agreement is a legally binding contract, the contract needs to have some specific features. First, one party offers to do something or not do something in exchange for the other person doing or not doing something. An offer is made and if the offer is accepted then the contract is binding on the parties. To be binding, the contract must embody the following five features: (1) there must be the mutual consent of both parties, particularly, the agreement cannot be forced upon one party, made in error, or be made based on false information. (2) Each party to the contract must have “contractual capacity” which means he or she has the mental faculties to understand the agreement and to keep the promises made. (3) The agreement must have a clearly defined purpose as to what bargain (or “deal”) is being made. (4) Most contracts also require there to be “consideration”, which means that each person must be giving something up in order to obtain something else. However, this requirement is relaxed in family contracts. (5) The fifth condition is also not required in all cases which is the requirement for a certain degree of formality, such as to be in writing. A contract can result from a verbal agreement, however, if the parties later disagree as to what was said, the existence of a verbal contract and its terms is difficult to prove. If the above conditions are met, the parties have a legally binding contract (in most cases) and if one of the parties breaches (fails or refuses to comply) without a reason recognized by law, the non-breaching party can go to court to have the contract enforced (“specific performance”) or to obtain an order for compensation for his or her losses (“damages”).
- Special Considerations for Family Contracts: The contractual principles as described above, though applicable to family law contracts, may be modified or applied quite differently by the courts than in the business environment. For example, where the interests of a child are at issue, the court has discretion not to enforce a contract that would otherwise be legally binding. For an example, see (L.A.) v. W. (G.N.) 2016 BCCA 132, where the court ruled: “There is no doubt that contractual principles are important in the interpretation and enforcement of family law agreements. Particularly when agreements deal with the care and well-being of children, however, considerations other than those of contract law are of paramount importance. The courts have the power to protect the best interests of children, both under statute and under their parens patriae jurisdiction.” Family contracts, even when dealing with property and other financial issues, are also subject to further scrutiny by the courts, and can be set aside by the court if the court finds it was not obtained fairly or it does not operate fairly.
To get an opinion on whether or not your family contract may be enforced by the court, or set aside by the court, contact us.
If a party has received notice of an application or of a trial, the notice will clearly state the date of the hearing or trial, as well as (if applicable) the dates for response. It is of utmost importance that the required response is filed with the court in accordance with the Rules, as a delay can result in the hearing going ahead without a party’s proper input or participation. It is possible adjourn (put off to a later date) a hearing or trial in some circumstances.
If an adjournment is requested by one party but the other side refuses to agree, then an application may be made for an order that the matter is adjourned. An adjournment application, if necessary, must be made in a timely manner in order to have a better chance of success. In considering an application for an adjournment, the court will hear evidence regarding the “prejudice” to each party (that is, the material disadvantage suffered) if the adjournment is allowed or disallowed and make a decision as to whom will be the most negatively affected. An adjournment may not be allowed, and as such it is always recommended that the party receiving notice of a hearing or trial date take immediate action to prepare the response, evidence, and arguments so as to have adequate time to present his or her case.
If you live together with someone in a “marriage-like relationship” continuously for two years, you become “spouses” for the purpose of the property and debt division provisions of the Family Law Act (FLA), and you and your common-law spouse may acquire an interest in the property of the other and become responsible for the debt amassed during the relationship. You can become responsible for the debt of your common-law spouse even if the debt is in your spouse’s name, not yours—and vice versa. You may also become “spouses” for the purpose of spousal support provisions of the Act. Note that for spousal support purposes, cohabiting parents are deemed “spouses” as soon as they have a child together.
Some cohabiting couples are surprised to learn that a court can treat them the same as married couples, even though they never consciously took such a step. You can become “spouses” for the purpose of property division even if you have never taken out joint debts or joint ownership of property, and even though you may have kept your finances separate. Though keeping finances separate may undercut the idea that your relationship is “marriage-like”, many other factors go into the “marriage-like” analysis including: how you present yourselves as a couple to friends and family; your emotional and financial interdependence; and your expectations. In the absence of a cohabitation agreement, in the event one party invites the court to determine property rights the Family Law Act regime will apply. It is meant to be fair to all parties, but it can still leave plenty to fight about. Determination of the division of property can also cause uncertainty and it may not fit with your and your partner’s financial plans. However, you still have the right to choose your own way.
You can enter into a cohabitation agreement before you start living together, when you are coming up to the two-year cohabitation mark, when you are starting a new venture, or anytime you and your partner decide to do it. In the cohabitation agreement, you can agree with your partner that some or all property will remain separate property, responsibility for debts will be as decided between you, and support obligations will never arise or will arise only under certain circumstances.
Some examples of when you may want to have an agreement with your common-law partner:
- You want to get a consolidation loan for your credit card debts, but each maintain responsibility for your share of the debts.
- You want to start a business venture and you don’t want to worry about how it will be affected by your living situation.
- You are about to buy a house with your partner, and one of your parents wants to help you out with the down payment.
- One of you is about to go back to school and incur a student loan.
Given the changes in the law in BC, a good cohabitation agreement (also referred to as a “cohab”) can reduce or eliminate disputes on separation. The cohab should deal with (a) who owns/owes what at the time the relationship began or the time of the agreement and the values of each asset or debt; (b) financial plans for the cohabitation period; and (c) how the property and debts should be divided if the couple splits.
Cohabs are feared because they come across as unromantic at best and even worse it can signal that there is mistrust regarding the motives of a partner. The fact is, cohabs are unromantic insofar as it is an acknowledgement that the couple may not live happily ever after. Most people avoid thinking about a cohab, let alone discussing one. It takes a lot of optimism to embark onto a serious relationship and therefore people just do not want to touch the implied negativity of a cohab. The very topic can sometimes be painful and cause strife in new family relationships.
On the other hand, making a cohab together can be an important aspect of the couple’s future financial hygiene. The couple, knowing where they stand and what they can expect in the future, can pave the way for open communication about financial matters (even if the relationship never ends). One of the major causes of relationship failure is discord over financial matters. Early discussions about money matters can be framed as “romantic” in that the couple is actively setting a pattern of openness about this very important subject. Also, to take some of the “sting” out the discussions, cohabs can be viewed as “temporary” insofar as the couple can revisit the agreement and revise it if need be. For example, the couple can review it at designated intervals (such as every five years) or at specific milestones (upon marriage or the birth of a child). This approach can make the agreement more fair and reasonable because it can evolve as the couple’s relationship evolves.
If the term “cohab” is too daunting, the couple can call their agreement a “Financial Agreement” or if it is a second or subsequent relationship where a spouse wants to preserve assets for his or her own children, it can be called a “Family Legacy Agreement”. When one individual has large interests, assets that are tied to third parties, or interests that are increasing in value due to long-standing efforts or investment strategies, a cohab can help achieve clarity and trust, and dispel suspicions. Finally, in order for a spouse to feel comfortable and respected during these discussions, the agreement has to address that spouse’s legitimate future needs so he or she can live reasonably should the relationship fail.
If you are a parent wishing to protect your wealth from a son or daughter’s common-law spouse, insisting that the cohabiting couple enter into a prenup may not be the most effective approach, and is likely to cause emotional rifts. Consider instead some other vehicles for protecting the legacy. If your legacy has yet to be transferred to your son or daughter, then you should consider a family trust structure designed to protect the legacy. If your son or daughter is already wealthy by way of your gifts to him or her, you need only be concerned if these assets are increasing in value. If so, the common-law spouse will have a claim to half the increased value. If you are more familiar with the values of these assets than your child is, it is of assistance to document the values at the commencement of the cohabitation (or as close as possible). If the assets already transferred to the child are increasing in value (such as real estate or shares), if the assets owned by the child are tied to the interests of third parties, such as your other children, or if it is a second relationship for your child, then that child probably needs a cohab. If your child is reluctant to spring this idea onto his or her common-law spouse, have the child say “my parents’ financial planners are insisting.” If the couple absolutely cannot face the idea of a cohab, then all you can do is leave the division of the increased values to the FLA and focus on protecting the remaining legacy.
The court can order that one spouse may have “exclusive occupation” the family residence. The test applied by the court is two-fold: (i) first the applicant must prove that shared use of the family residence is “a practical impossibility”; and (ii) second the applicant must prove that he or she is the preferred occupant of the home.
In applying the test for exclusive occupation, the court may decide that the parties can share the family residence, even if sharing is uncomfortable or inconvenient. For example, in one case, the common-law wife gave evidence that it would be inconvenient to “move every six days” under the six-on/six-off nesting arrangement proposed by the husband, and that she was fearful that her ex-husband would leave a mess for her to clean up. The court found that the wife had failed to show that sharing was a practical impossibility – Hughes v. Erickson, 2014 BCSC 1952.
Where there are children, the principal factor in determining which party will have exclusive occupancy is the best interests of the children: Bateman v. Bateman, 2013 BCSC 2026. The court will consider a child’s need for stability, consistency and predictability: A. (C.E.) v. A. (B.E.) 2014 BCSC 1500. Other factors considered: a spouse’s ability to earn income, financial issues, and mental and physical health – Evans v. Mahtoy 2015 BCSC 2141.
The court has an obligation to consider family violence, and the presence of family violence will affect both occupancy of the home and any additional protections required: E. (J.R.) v. 07—–8 B.C. Ltd., 2013 BCSC 2038.
A party who is awarded exclusive occupation of the family residence may become solely responsible for the expenses associated with that residence. See for example Kronlachner v. Kronlachner 2014 BCSC 2593. Sometimes the person who stays in the family home will be obligated to pay the other party occupational rent. In T. (M.) v. B. (C.J.) 2015 BCSC 1852, the common-law husband argued that the residence could produce rent of $4,000 to $5,000 per month. He wanted to be compensated for half the potential rent for one year. The common-law wife had made all the payments (mortgage, insurance, taxes and strata fees). The court found that the husband had been “removed” from the residence on the basis of a complaint against him to the police, i.e., as a “consequence of his own misconduct”, not, as required by the common-law, because he had been “kicked out” or “ousted”. He was not awarded occupational rent.
If there has been no ouster, the court may still consider off-setting an amount for occupational rent from any amount claimed by the residing party that the non-residing party contribute to the expenses of upkeep for the residence.
The amount of occupational rent will generally be calculated based on what the residence could be rented out for in the prevailing market. See for example Glueckler v. Glueckler 2014 BCSC 2128. In F. (J.S.) v. F. (W.W.) 2015 BCSC 2375, the court found that it would be “significantly unfair if no adjustment was made for the fact that the claimant has occupied the matrimonial home since separation, paying the mortgage from the joint line of credit, while the respondent was solely responsible for paying rent for his accommodation.” The wife was therefore ordered to compensate the husband $21,801, being his half of the mortgage payments ($1503.53 per month for 29 months). Similarly, in Kanizaj v. Krcmar 2016 BCSC 375 the court found that the non-residing spouse had paid the house-related expenses of approximately $2000 per month for 33 months, while the residing spouse paid nothing to live there. As such, half the payments, for a total of $33,000, was deducted from spousal support the non-residing spouse had to pay.
If the matrimonial home must be sold in order to divide assets the parties may agree, or the court may order that the sale of the home is delayed until children are older. A delayed sale may be available where an immediate sale could force the children to adapt to a new setting or school during an otherwise difficult time in their lives, and/or create challenges for the primary parent. This is considered separately from the consideration of the need for financial independence of the spouse. Such an order may also be made as a reapportionment order, for example, where a spousal support award fails to assist the recipient spouse to achieve economic self-sufficiency.
It is usually not a good idea to leave the matrimonial home until you have met with a lawyer and understand your rights and obligations with respect to staying or going. On the other hand, in situations involving family violence, safety of the parties and other family members absolutely comes first. If you leave for safety reasons, you can apply afterward, if the circumstances warrant, for an order for sole occupancy which means you can move back in and the violent spouse will need to stay away.
If there is no family violence, and both parties want to stay, it is best to reach an agreement to either share the living space as “roommates” in an interim arrangement, or, if this is impossible, make an agreement that one will leave on adequate terms such that the leaving partner will be able to obtain reasonable alternative housing. Sometimes an owning party can unilaterally change the locks on the house and effectively kick the other party out.
If both parties are owning parties, then either could conceivably change the locks. Such a step may have consequences, however. If one party changes the locks and prevents the other from residing in the home, the court may construe this as ouster, or forced removal, from the family home. If one party is ousted (where there are no safety reasons for the ouster), the ousted party may be entitled to compensation from the party who remained in the home. This compensation may be calculated as a portion of the rent the ousted party paid while living away from the family home, or as a portion of the sum the family home could have rented for. In C. (J.D.) v. C. (K.L.M.F.) 2014 BCSC 2182, the court calculated that the ousted party paid rent of $800 per month for 54 months. This resulted in a reapportionment of the family assets in favour of the ousted party in the sum of $43,200.
“Family property” is all property that is owned by (or a beneficial interest in it is held by) at least one spouse on the date of separation, unless the property falls within the definition of “excluded property” (set out below). Family property includes property acquired after separation if it is derived from property that is family property.
Section 84(2) of the FLA details certain types of property that are family property, including: (a) shares in a corporation; (b) an interest in a business; (c) property or money owed to a spouse; (d) money in a bank account; (e) a pension, annuity, RRSP or income plan; (f) property, other than excluded property, that a spouse disposed of after separation but over which the spouse retains authority; (g) the increase in value of any excluded property.
Subject to certain exceptions, excluded property is (a) property owned before the relationship; (b) inheritances, and gifts (other than gifts from the spouse); (c) an award for injury or loss (such as from a personal injury claim); (d) money received by way of an insurance policy; (e) excluded property referred to above that is held in trust; (f) property held in a discretionary trust; and (g) property that can be traced from excluded property. If property is in a spouse’s name, that spouse has the burden of proving it is “excluded”.
“Family debt” includes all financial obligations incurred by either spouse from the time the relationship between the spouses began until separation, and, in certain circumstances, afterwards.
Either spouse may ask the court to “reapportion” one or more assets into his or her favour, for example, from 50-50% to 75-25%. On such application, the court will consider whether 50-50% would be “significantly unfair” in consideration of the following factors: (a) the length of the relationship; (b) the terms of any agreement; (c) the contribution to the career of the other spouse;(d) the family debt; (e) the ability of each spouse to pay a share of the family debt; (f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt; (g) whether a spouse reduced the value of or disposed of property; (h) any tax liability incurred by a spouse as a result of a transfer or sale of property; (i) any other factor that may lead to significant unfairness.
The court may also consider the following additional factor, how the financial means/earning capacity of a spouse have been affected by the relationship, if “the objectives of spousal support have not been met.” The “objectives of spousal support” in this context are: (a) to recognize any economic advantages or disadvantages to the spouses due to the relationship or its breakdown; (b) to apportion between the spouses the financial consequences arising from the care of their child (not including child support payable); (c) to relieve economic hardship of the spouses due to the breakdown of the relationship; (d) as far as practicable, to promote the economic self-sufficiency of each spouse.
The court’s discretion to deviate from 50-50 division of family property and debt is tempered by the requirement that any unfairness needs to be “significant”. “Significantly unfair” has been interpreted as follows: “Only when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge […] depart from the default equal provision.” G.(L.) v. G. (R.), 2013 BCSC 983
In a real-life example, in which the court found equal division “unfair” but not “significantly unfair”: after a relationship of over 11 years, a judge considered whether reapportionment of family property was required “to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship”. The common-law wife argued that she contributed to the career of the husband by assisting him to develop a successful new business. This business was so successful that it enabled him to quit his regular job and by the time the parties separated, the business only required him to “work a bare minimum”. The court found that she had enabled him to “live the lifestyle he now enjoys”. The court also found that the parties’ original plan, which was that they would both enjoy such a lifestyle, had not materialized; it only benefitted the husband. Nevertheless, the judge accepted that the situation was “unfair” but ruled it did not amount to “significant unfairness” as is required by the law – W. (S.L.M.) v. W. (M.R.G.) 2016 BCSC 272.
There are four basic ways you may not have to share your property if you split up with your spouse or common-law spouse.
- Excluded Property: The Family Law Act (FLA), which came into force in March 2013 adopted an “excluded property” model. Separating spouses end up with a “communal pot” of family property to divide, but excluded property is removed from the pot. Excluded property includes property acquired by a spouse before the relationship began, property inherited by a spouse, and gifts received by a spouse from a third party. The definition of excluded property also reaches “property derived from” excluded property or from the disposition of excluded property. Excluded property must not be divided (unless it would be significantly unfair not to divide it having regard to only two factors — the duration of the parties’ relationship and any direct contribution by a spouse to the preservation or maintenance of the property).
- Reapportionment: Section 95 of the FLA provides that the court can divide family property/debt unequally if it would be significantly unfair to divide it equally. In making this decision, the court may consider the duration of the relationship; whether there was an agreement between the spouses about the property; one spouse’s contribution to the career of the other spouse; whether family debt was incurred in the ordinary course of the relationship; the ability of each spouse to pay a share of the family debt; whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property; any tax liability that may be incurred by a spouse as a result of a transfer or sale of property; and any other factor causing significant unfairness.
- Prenups and Cohabitation Agreements: An agreement can operate to protect you from sharing your assets with your spouse should you break up. A good legal agreement can also prevent the stress, expense and uncertainty of determining how assets will be divided should the relationship end and parties don’t agree. Agreements are intended to be binding on the parties who sign them. However, the court can set an agreement aside or vary it in certain circumstances. A prenup or a cohabitation agreement must be carefully crafted in accordance with current court decisions in order to ensure that it is not likely to be set aside or varied if challenged later on.
- Estate Planning: This is a process which utilizes a wide variety of devices and vehicles such that a person can exercise as much control as possible over what will happen to his or her legacy when that person dies. The devices and vehicles can include wills, trusts, beneficiary designations, property ownership and co-ownership, gifts, tax-saving or tax-deferring facilities, and powers of attorney. For example, proper estate planning can help ensure that your property goes to your children rather than to your spouse or common-law spouse, either in your lifetime or after your death. Estate planning issues can also impact a claim you make, a claim made against you, and/or a claim made against your inheritance or future legacy.
The starting point for division of debt under the Family Law Act (FLA) is s. 81 which provides that spouses are both responsible for family debt, regardless of their respective contributions to the debt, and that on separation, each spouse is equally responsible for family debt. However, the court may order an unequal division of family debt if it would be significantly unfair to equally divide family debt. One factor that may be taken into account is whether or not the “debt was incurred in the normal course of the relationship between the spouses”.
The court is generally not willing to dissect the financial dealings between the parties during the marriage.
Section 19(1) of the Federal Child Support Guidelines (“FCSG”) permits the court to impute income if it appears that income has been diverted which would affect the level of support payable under the FCSG, and if the spouse has failed to provide income information when under a legal obligation to do so. In Bodine-Shah v. Shah 2014 BCCA 191 the Court of Appeal noted the payor’s lack of financial disclosure, the inadequacy and unreliability of his explanation for the significant difference between his pre- and post-separation return on gross revenue, the inability of the accountant to explain the payor’s business expenses, and the appellant’s post-separation lifestyle and payment of expenses of his girlfriend’s company.
The Court of Appeal emphasized: “This Court has forewarned litigants of the potential, for those who fail or refuse to make full and frank disclosure of their financial circumstances, of having adverse or negative inferences drawn against them with attendant consequences that may include the imputation of income (see: Poursadeghian v. Hashemi-Dahaj, 2010 BCCA 453, 10 B.C.L.R. (5th) 102 (B.C. C.A.), where the payor was found to have provided an inadequate explanation or to have given unreliable evidence in support of his submission on income; Reis v. Bucholtz, 2010 BCCA 115, 3 B.C.L.R. (5th) 71 (B.C. C.A.), in which the judge imputed income and denied re-opening of the trial on the basis that the payor failed to disclose or adduce evidence as to his income from renting his farm out; and Motyka v. Motyka, 2001 BCCA 18 (B.C. C.A.) at para. 16, (2001), 83 B.C.L.R. (3d) 339 (B.C. C.A.), in which the payor’s failure to make full financial disclosure resulted in imputation of income based on his lifestyle, monthly expenses, and income during the marriage).”
With respect to child support (permanent and interim), both parents have an ongoing legal obligation to support their children. The objectives of the Federal Child Support Guidelines (“FCSG”), are: (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.
When considering an award of interim spousal support, the court shall take into consideration the “condition, means, needs and other circumstances” of each spouse, including: (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. The objectives of a spousal support order under the Divorce Act are: (a) to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;(b) to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The main purpose of interim spousal support is to bridge the period between when the action is commenced and the trial: M. (D.R.) v. M. (R.B.), 2006 BCSC 1921; Goriuk v. Turton, 2011 BCSC 652.
Because interim orders are summary in nature and temporary, they provide a rough justice at best: Newson v. Newson (1998), 65 B.C.L.R. (3d) 22 (B.C. C.A.). The “rough justice” approach to interim spousal support recognizes that the evidence on the interim application is often insufficient to permit an in-depth analysis of the relevant factors. The legal test governing interim spousal support is: the relevant factors that inform the issue of spousal support are to be considered to the extent possible, but the respective needs and means of the parties are the central factors on an interim application. Considerations such as compensatory factors and the need to achieve self-sufficiency are less significant: G. (R.C.). v. G. (C.L.), 2010 BCSC 1596.
In Goriuk v. Turton, 2011 BCSC 652127, the court pointed out that an interim spousal support order should consider: (a) needs; (b) ability to pay or means; and (c) a presumptive claim to an equal standard of living subject to an equal sharing of the consequences of the dissolution of the marriage. The third criteria is based on a Supreme Court of Canada case Moge v. Moge (1992), 43 R.F.L. (3d) 345. However, in the interim setting the court may be limited by the extent and reliability of the evidence. “Means” has been defined by the court as including “all pecuniary resources, capital assets, income from employment or earning capacity and other sources from which the person receives gains or benefits” M. (P.R.) v. M. (B.J.), 2013 BCCA 327. “Needs” does not mean “enough to survive.” It means that wherever possible, interim support should permit the recipient to continue to live at the same standard of living as before separation: Robles v. Kuhn, 2009 BCSC 1163.
Pursuant to s. 3 of the Federal Child Support Guidelines (“FCSG”), the amount of a child support payable (for a child under 19) is the amount set out in the applicable table for the income of the payor.
Under some circumstances, the amount payable for child support will be different than the “table amount”. For instance, section 4 of the FCSG provides for the determination of child support when the payor’s income exceeds $150,000 per year, which will be the “table amount” under s. 3, unless that amount is considered “inappropriate”. In that case, the court must apply the “table amount” to the first $150,000 of income, and with respect to the balance of the income, what is appropriate considering the condition, means, needs and other circumstances of the children and the financial ability of each spouse, and the amount, if any, paid additionally for “special and extraordinary expenses” of the children (a.k.a. “section 7 expenses”). Section 8 and 9 of the FCSC apply when at least one child spends at least 40% of their time in the payor parent’s care.
On an interim application for child support the court tries to put in place a reasonable arrangement which will serve the interests of the children and the parties until a thorough review of the family’s circumstances can take place at trial. Any unfairness may be resolved by the trial judge: Roche v. Chen, 2012 BCSC 1290.
Unless there are exceptional circumstances, the court will apply the Spousal Support Advisory Guidelines (“SSAG”) to determine the quantum of interim spousal support: Beauregard v. Beauregard, 2014 BCSC 1188. The court is unlikely to impute income to a party on an interim application, absent exceptional circumstances: F. (I.) v. R. (R.J.), 2015 BCSC 793. The court will give priority to child support where it is considering both an application for child support and an application for spousal support.
When determining income for support (including spousal support) purposes the starting point is s. 16 of the Federal Child Support Guidelines (“FCSG”). The starting point is Line 150 of the spouse’s income tax return, which is then adjusted in accordance with Schedule III of the FCSG.
The FCSG provides discretion to the court to consider the spouse’s income over the last three years to determine any pattern, fluctuation or non-recurring amount of income. The court can also consider the pre-tax income of a corporation where the spouse is a shareholder, director or officer of that corporation. Given the summary nature of interim support applications, income should be determined on the basis of amounts actually earned wherever possible. However, the court may impute income to a spouse if appropriate, including where income has been diverted, where a spouse unreasonably deducts expenses from income, or a spouse is intentionally underemployed.
In S. (D.B.) v. G. (S.R.), 2006 SCC 37, the Supreme Court of Canada outlined the basic principles that create the obligation to pay child support as follows: (1) child support is the right of the child; (2) the right to support survives the breakdown of a child’s parents’ marriage; (3) child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and (4) the specific amounts of child support owed will vary based on the income of the payor parent.
A parent may make a claim for child support in his or her Notice of Family Claim. If a parent does not bring an application for an order for child support, this does not excuse the other parent from paying child support, as child support belongs to the child.
If you are not receiving child support, there are several ways to try to secure it without applying to court. A court application is generally your last resort. If you have children who do not primarily reside with you, in almost all cases, you must pay child support to the primary care parent.
Section 3(2) of the Federal Child Support Guidelines (“FCSG”) provides that if the child is over 19 but still a “child of the marriage” in need of support, payment may continue in: (a) the amount determined by applying the Guidelines as if the child were under 19; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
When determining whether a child over the age of majority who is pursuing post-secondary education is still a “child of the marriage” for support purposes, the court considers factors such as the contribution of the child to their education, the reasonableness of career plans and the parents’ plans for the education of their children before the breakdown of the marriage: See a longer list of factors in Farden v. Farden (1993), 48 R.F.L. (3d) 60.
Upon or even before separation, parents should reach agreements regarding future parenting arrangements. Sometimes, but not always, a shared parenting arrangement is in the best interests of the child.
With respect to parenting time and parenting responsibilities (formerly referred to as “custody” and “access”), both the Family Law Act and the Divorce Act prioritize the best interests of the child. The Divorce Act stipulates that the child should have as much contact with each parent as possible insofar as such is consistent with the child’s best interests, and for that purpose consideration is given to the willingness of one parent to facilitate contact with the other parent. Ultimately this section also boils down to a consideration of the child’s best interests and does not establish a presumption of 50-50.
If both parents possess the skill and ability to exercise their parental responsibilities properly, the court may easily find that it is in the child’s best interest to spend the maximum amount of time with both parents. The court is generally not happy to hear evidence pertaining only to differences in parenting style or “character flaws” of either parent. In P. (K.D.) v. K. (A.R.), 2011 BCSC 1085, the court emphasized that no parent is perfect, and care must be taken not to focus on a parent’s character flaws in a manner which loses sight of the strengths that parent can bring to the challenge of raising children.
However, there is no presumption that any given arrangement—including 50-50 sharing of parenting time and responsibilities—is in the best interests of the child. Very small children may benefit from being primarily with one parent such that the child can form a suitable bond. In some circumstances one parent’s lifestyle is more stable, or there may be other issues giving rise to a situation where one parent primarily caring for the children is better for the children. The parents should discuss the child’s needs in an unselfish manner and try to agree. If they cannot, the court may be obliged to decide what is in the child’s best interest.
If you are unsure how to weigh the above factors, or the other parent is proposing an arrangement you don’t think is in your child’s best interests, you may require legal advice.
Under s. 37 of the Family Law Act (FLA), parenting issues must be determined based only on what is in the best interests of the children. Section 37 states: “In making an agreement or order […] respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.” This analysis includes a consideration of all of the child’s needs and circumstances, including: the child’s health and emotional well-being; the child’s views (if appropriate); the nature and strength of the relationships between the child and significant persons in the child’s life; the history of the child’s care; the child’s need for stability; the ability of each parent to exercise his or her responsibilities; the impact of any family violence on the child’s safety, security or well-being; whether the person responsible for family violence is impaired in his or her ability to care for the child and meet the child’s needs; the appropriateness of an arrangement that would require the child’s guardians to cooperate; and any civil or criminal proceeding relevant to the child’s safety, security or well-being. On considering these factors, a court may decide that it is not in a child’s interest for the parents to share parenting responsibilities. Under s. 40 of the FLA, only guardians can exercise parental responsibilities. Under s. 59 of the FLA, the court can grant “contact” with a child to a person who is not a guardian.
Courts acknowledge that it is in the best interest of every child to have a close, loving and nurturing relationship with both parents. If one parent is having difficulty providing for a child’s basic needs, the court may facilitate a relationship between that parent and the child by way of limited or supervised access. The objective of supervised access is to ensure that children have contact with the parent in a safe environment. If you are not seeing your child or children at all, you may apply for either an order for a shared parenting schedule or for either supervised or unsupervised contact with the child.
The case Haywood v. Carrasco 2016 BCPC 71 reflects the state of the law pertaining to the “custody” of pets. When the common-law couple split up, they shared the dog, Kali, until one occasion, while under the common-law ex-husband’s care, Kali escaped the fenced yard and was found running on the Barnet Highway. The common-law ex-wife decided that the common-law ex-husband could only see Kali in her presence. The common-law ex-husband then applied for an order to have Kali returned to him on the basis that he had actually purchased Kali.
The dog, Kali, was treated as “property”, but when the Judge applied the balance of convenience test, he found that “competing claims for animals could and should take into account different factors from cases involving inanimate objects, including the best interests of the animal concerned.” The Judge also found that “the nature of the relationship between an owner and a pet dog is qualitatively different from the relationship between an owner and all other forms of personal property. Most people view a pet as a member of their family to be cared for until death, not a possession to be bought and later sold in a garage sale or on craigslist or given away to charity when it is worn, outgrown, out of date or no longer needed or desired by its owner.”
He also noted that animals are not treated like objects in other legislation such as the Criminal Code where it is an offence to “willfully cause […] unnecessary pain, suffering or injury to an animal”, and the Prevention of Cruelty to Animals Act, which enables the BC Society for the Prevention of Cruelty to Animals to apply to a court for interim custody of an animal, and in such cases the best interests of the animal can be taken into account.
The court concluded that “while a dog is a form of personal property and is certainly not a person at law, the law reflects society’s expectations as to how an animal should be treated and the relevance of the best interests of the animal in proceedings related to its custody. The treatment of Kali in the custody of Mr. Haywood and the best interests of Kali are factors that I can and must take into account in considering the balance of convenience in this case.”
The court found that there was evidence of neglect while in the common-law ex-husband’s care and no similar concerns regarding the common-law ex-wife, and that it could be distressing to Kali to remove her from the common-law ex-wife’s custody and place her in the custody of the common-law ex-husband’s care with only twelve weeks remaining until the trial with its uncertain outcome. The court therefore ruled that “it is in the best interests of Kali to remain in the custody” of the common-law ex-wife until trial.