Family law

Advice about your legal rights at any stage of of your relationship

 

  • Divorce & Separation

  • Parenting & Child Custody

  • Child Support

  • Spousal Support

  • Property & Asset Division

  • Separation Agreements

  • Revising order / agreements

  • Breaches of orders / agreement

  • Family Violence / Protection Orders

Consider the FAQ’s below for more info…

We can help with…

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 Frequently asked questions

Divorce

  • The cost of a divorce is made up of three amounts: legal fees, disbursements, and taxes. The legal fees are the amount that your lawyer will charge you to complete the work. When a divorce is contested it varies wildly depending on the issues. If the divorce is agreed to between the parties, the legal work usually costs between $2,250 and $2,950.

    Disbursements are the amounts that the lawyer pays on your behalf. This includes things like filing fees, arranging for service of documents, photocopying, mailing, etc. For an uncontested divorce this usually is less than $500.

    Unfortunately, our lawyers are not so good that they can avoid taxes. If you find a lawyer that can, they are probably not very ethical. Taxes are paid on fees and most disbursements.

  • A divorce can be granted after 1 year of living separate and apart from your spouse. Under the Divorce Act, the court can grant a divorce before the 1 year mark based on mental cruelty or adultery. Frankly, it is rarely done as it requires additional work and considerations and judges are often reluctant to order the divorce before the year is up. You can start the paperwork prior to 1 year but the court takes its time to process divorce paperwork. It can often take at least 4 months after all the paperwork is completed to receive the divorce order.

  • Probably not. In uncontested divorces, everything can usually be done without an appearance at court. Occasionally, the lawyer is required to speak to an application on your behalf, but this is rare. Accurately completing the paperwork is the critical step in a divorce proceeding.

Property Division

  • The Family Law Act provides the guidance as to what property and debts each party will be entitled to. The case law on this topic is one of the most complex and unsettled topics in family law. It is highly recommended that if you have complex assets or discrepancies in your earned assets you speak with counsel to obtain a more complete answer.

  • Maybe. You should speak to a lawyer about your circumstances. If you are in imminent danger, contact the police. There are parameters in the Family Law Act under section 90 that provides for temporary orders of exclusive occupation of a family residence. You would need specific legal advice on whether you may be entitled to this relief.

  • Typically, the parties either sell the house jointly or one party buys the other’s interest out of the family residence after everything is resolved. However, there are terms of the Family Law Act that in certain circumstances allow for the sale of the family residence. This sale may provide for financial relief as it relates to mortgage payments, but the proceeds will likely be held in trust until a final resolution is held.

    Before you liquidate any major asset, it is advisable to talk to a lawyer about the consequences of this decision.

  • The Family Law Act states that “spouses are both entitled to family property and responsible for family debts, regardless of their respective use or contribution, and on separation, each spouse has a right to [share equally] all family property… and… family debt”. There are exceptions to this rule which can be discussed with your lawyer. The specific circumstances are highly important to knowing what the division will ultimately be.

Children

  • This is important but not determinative. The child’s maturity and capacity will be important in knowing what value to give to the child’s opinions. In family law proceedings, we listen to children’s voices at a certain age and maturity level, but their wish is not the only consideration. The best interest of the child will prevail. One of the many considerations of the best interest of the child is their views.

    However, it is common for children to tell their parents what they want to hear, so be prepared that a child may tell both parents they want to live with them. Often clients will put to great a focus on this one factor, and this can lead to protracted litigation.

  • Each decision must be made in the best interest of the child. However, when parties earnestly disagree about what the child’s best interest is, then a determination must be made. There are a host of options on how to find a resolution (e.g., parenting coordinator, judicial intervention, allocation of parenting rights, etc.). Your lawyer can discuss with you these options and what makes the most sense for you.

  • When dealing with parenting the only consideration is the best interest of the child(ren). To the degree your ex’s new spouse impacts the best interest of the child is the degree that something can be done about the new spouse. Obviously if they are endangering the child, this will have a heavy impact. However, if you simply do not approve of your ex’s new partner, then it is unlikely it will amount to much.

  • If a child is in immediate danger, call the police to intervene. Additionally, adults are required to report to the Ministry of Children and Family Development (phone: 1-800-663-9122) suspected abuse or neglect of a child. Beyond these more imminent options, your lawyer will be able to discuss a host of options. These options are very broad and need to be tailored to the specific circumstances.

  • This is such a high conflict situation that general advice is unlikely to be helpful. You should contact a lawyer immediately.

  • To answer this question your lawyer will need to know the circumstances. They will consider what is obliging each of you to particular time with the child (i.e., agreement, court order, etc.), consider section 183 and 184 of the Family Law Act, and the basis for the child’s refusal. Refusal to attend is serious and you should consult with a lawyer. There may be a need for an urgent court application.

Child Support

  • FMEP is a government agency that deals with payment of child and spousal support. They have considerable power to enforce agreements and orders for support. If you have been contacted unsuspectingly by FMEP reach out and we will help determine what you should do. It is important to understand that FMEP cannot change your order or agreement – they can only enforce what is currently ordered. It is common for clients to retain lawyers to vary the existing order because circumstances have changed. After the order is varied, the new order goes to FMEP and they will enforce the new order.

  • Child support depends on the parenting time you spend with your child and the income you are capable of earning. If your parenting time is more than 60% and will continue to be so, you may no longer have to pay monthly support. If your income is falling due to circumstances outside your control, then this may be a material change worthy of decreasing support. Each case is dependent on your situation. A lawyer will need to hear all the facts before being able to advise on the likelihood of making a change to your child support order.

  • There are usually a host of steps that can be taken ranging from a request to an order for disclosure. If your spouse never provides the information, it may be possible for the court to impute income to them. Imputation means the court will make and order setting out your spouse’s income based on some evidence and a judicial determination. The court will then order the child support based on that imputed income.

  • Underpaying child support is a dereliction of a parent’s duty to their child. This is a legally simple but factually difficult issue. The Federal Child Support Guidelines set out the disclosure that must be made by a parent to find the right payment of support. Underpaying is common in family law and Recovery Family Law’s lawyers have lots of experience with this issue.

  • Child support is the right of the child. Spouses cannot opt out of paying child support. If you have an order or agreement for payment, consider using Family Maintenance Enforcement Program to collect. If you do not have anything in place, your lawyer can help you get support.

  • A review of child support is a process to see if the child support being paid continues to be appropriate. Most agreements and orders provide for a review of child support. The process includes exchanging financial information. The incomes and the parenting arrangements are reviewed, and appropriate child support is determined.

  • Section 7 is referring to the Federal Child Support Guidelines which deals with special or extra ordinary expenses. This is a type of child support that is payable. It covers expenses that cannot be expected to be covered by monthly child support. Not all expenses are section 7 expenses, and your lawyer can help you determine what may or may not be covered by this section of the Federal Child Support Guidelines.

Spousal Support

  • There are three bases for entitlement to spousal support: 1) compensatory support, 2) non-compensatory (needs based), and 3) contractual. Contractual is where the parties have an agreement, usually a prenuptial/cohabitation agreement obligating the payment of support. Compensatory support is meant to compensate a spouse for the roles the parties played during the marriage. We usually see this kind of support when one party has left the workforce or reduced their work to provide more of the caregiving while the other party has focused on moving forward in their career. Non-compensatory support is commonly referred to as needs-based support. It is when one spouse demonstrates financial need, and the other spouse has the capacity to pay. Entitlement to support can be complicated and is often an emotionally charged topic. You should speak to a lawyer about your entitlement to spousal support.

  • Alimony and spousal support are the same thing. In Canada we use the term spousal support.

  • The duration of support depends on the basis for support, age of the parties, and other circumstances. Generally, the support will last between one half to the entire length of the marriage like relationship. There are many factors that may change this, and you should speak with a lawyer to obtain an informed opinion of range of duration for support.

  • In determining spousal support quantum (in other words, how much?), the Spousal Support Advisory Guidelines (SSAG) is a good place to start. SSAG will provide a range of support based on the parties’ other obligations and income. There are some good free online calculators to determine what the SSAG range would be. There is wide range in amount and duration for many families. There are possibilities for lump sum support scenarios, front or back end loaded support, and ongoing reviews and variations. Spousal support negotiations allow for more room for different arrangements than the straight-forward requirements of child support.

  • Spousal support can be terminated due to a termination clause in the order or agreement, or by further order or agreement. The basis for a further order will depend mostly on your financial circumstances both during the relationship and at the time of the application.

Separation

  • In the short term, there are many community resources that might be of assistance to you. There are shelters for parties and children fleeing violence. Ultimately, you may want to negotiate or bring an application to have exclusive occupancy of the family residence. You will need legal advice on whether you are likely to succeed on that kind of application.

  • If you are in immediate danger, please call the police. They will decide if the matter rises to a criminal level. On the family law (or civil) side, the legal remedies are usually either conduct orders or protection orders. The difference between these options is the type of enforcement. Both types of orders can be brought by a quick application depending on the circumstances. If the circumstances are less dire, then negotiations to set parameters can be helpful and less antagonistic.

  • In the Divorce Act, separation is from when “either of them had the intention to live separate and apart from the other” (s. 3(a)). The Family Law Act does not significantly differ from this standard. The parties do not have to physically live in separate housing to be separate and apart. While often it is clear when parties start living separate and apart, on occasion this can be hotly contested. Usually, the exact date is immaterial. You should have some basis for explaining why you say the date of separation is when you say it is. It is improper for you and your spouse to create a separation date in order to get your divorce faster.

  • Changing a parenting arrangement requires a material change in circumstances or an agreement between the parties. If a material change is found, then the best interest of the child(ren) is the only consideration to determining the new parenting time.

  • Spousal support can be terminated due to a termination clause in the order or agreement, or by further order or agreement. The basis for a further order will depend mostly on your financial circumstances both during the relationship and at the time of the application.

  • It will depend on the specific circumstances of the order or agreement but generally, 19 years of age means the child has become an adult. This does not necessarily mean support terminates. The court will look at the child’s ability to self support and need for continued support. Usually if a child is enrolled in full time education, they will still be entitled to child support.

Revising Orders / Agreements

  • Please look at the Family Maintenance Enforcement Program (FMEP). FMEP is a free service of the BC Ministry of Attorney General helping families and children entitled to support under a maintenance order or agreement enforce such. Enrolling in the FMEP is straightforward and effective. They have ability and reach to assist you with collecting the support you are entitled to at no cost to you.

  • Disclosure of income records for child support is required by the Federal Child Support Guidelines. Applications to obtain financial disclosure are unfortunately common despite the Court of Appeal suggesting that “financial non-disclosure is the “cancer” of family law litigation” (Smith v. Smith, 2017 BCCA 319). The lawyers at Recovery Family Law are well versed in financial disclosure applications and can often create leverage to avoid the application being necessary.

  • This is an incredibly frustrating situation. Try to remain calm. You do not want your actions to provide a justification for your ex to keep your child based on your behaviour. This is a time to be tactical and consider your options. Your lawyer will assist you with how to deal with this. If necessary, your lawyer may need to bring an application to solve the problem.

Breach of Orders / Agreements

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