Relocating with Children: The Single Parent Know-Alls

Are you separated from your spouse and thinking about moving with your child? Before jumping on a plane, there are key questions that you need to ask and certain factors that you need to be aware of.

Firstly, does your child spend more time with you then they spend with your ex-spouse? If so, a court is more likely to allow you to relocate with your child than if the child spends equal parenting time with both parents. If your child spends equal parenting time with both you and your ex-spouse, then the only consideration a court takes into account is what is in the best interest of your child.

If you do not have equal, or near equal, parenting time with your ex-spouse then the considerations are different. A court will require that:

  1. You have made a proposal for reasonable and workable arrangements to preserve your child’s relationship with their other parent, persons who have contact with them, and persons who play significant roles in their lives; and
  2. Your proposed relocation is made in good faith.

What are reasonable and workable arrangements?

In the case of Hansen v. Ferguson, 2015 BCSC 588 the court found the mother proposed reasonable and workable arrangements to preserve the father’s relationship with the children by sharing all travel costs, returning to Victoria twice a year with the children, transferring all available travel points to the father for his use, and providing regular Skype contact and email reports when he was at sea.

Although every case is different, sharing the cost of travel, planning trips home, and ensuring the children remain in contact with the other parent are all factors that the courts will consider as reasonable and workable arrangements. Keeping in mind the courts want to see that your child will be able to maintain his or her relationship with their other parent.

What is the meaning of good faith with regards to relocation?

Good faith is defined in s.69(6) of the Family Law Act and includes:

  • the reasons for the proposed relocation;
  • whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
  • whether 60 days’ notice of an intention to relocate was given; and
  • any restrictions on relocation contained in a written agreement or an order.

Accordingly, if you can satisfy the court of the above, then the relocation is presumed to be in the best interests of the child and should thus be granted, unless the children’s other parent satisfies the court otherwise.

Returning to the case of Hansen v. Ferguson the court found that the mother had shown her cost of living would be substantially less in Ontario to that of Victoria, and the proposed move was well planned. The mother would have more emotional supports in Ontario through extended family and support of her boyfriend.  This would have a trickle-down effect on the children, given that she was the primary caregiver.

The court specifically stated that:

[48]As the primary caregiver, this improvement in the mother’s general quality of life will also benefit the children. However, neither the mother nor the children have personal connections with anyone in Pembroke other than R.W., and the children will be far away from their father, grandmother, aunt and cousin, with whom they have established close bonds. This is, of course, the primary concern, but it does not on its own show an absence of good faith. These children are very young and they have not yet established routines outside of their immediate family lives that are important for them. Adapting to a new life away from their father and his family may be challenging for them, but they will be with their mother with whom they also have very close bonds. And given the mother’s plan to have more time with them and to place them in daycare where they will meet other children, I would expect them to socialize in their new environment reasonably quickly.

[49] In this case, the mother has given a lot of consideration to the impact of this move on her children’s emotional well-being. Despite the separation from the father, I find that the relocation will likely enhance the general quality of their lives.

 

If you are thinking about relocating to a new city, with your child, please contact Velletta & Company today. We would be happy to advise you on the proper procedure and help you satisfy the above requirements.

 

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

Who Gets the Pet?

Pet_Custody_Case

Most pet owners consider their pet to be a member of their family and not just another piece of property.

Normally when separating from your spouse pets are considered property and are therefore subject to be divided within the overall division of property in your family law case. A pet, therefore, would be subject to the property law principles in the Divorce Act and the Family Law Act.

This means that in British Columbia the courts consider the following when answering the question of, “who gets the pet?”

  1. Who purchased the pet?
  2. Was the pet a gift to one of the parties?
  3. Who has paid for the majority of the expenses related to the pet?
  4. Is one of the parties the registered owner of the pet?
  5. Who has had possession of and/or cared for the pet since the parties’ separation?
  6. Who was principally involved in the pet’s early training?
  7. Who was principally involved in the pet’s day-to-day care?

Additionally, courts have expressly stated that:

(a)  Pets will not be treated in a manner such as children;

(b)  Courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

As you can see, when a court considers the question of “who gets the pet” the question is more related to who the true owner is and not what arrangement is best for you and the pet. If you and your former partner both want to remain involved in your pet’s life, then it might be preferable to settle your pet custody dispute by consent in the form of a Consent Order or a Separation Agreement. This is because Judge’s tend to want to ensure some kind of finality for the parties while minimizing the likelihood for future conflict. Since, in the eyes of the law, pets are considered property, it is highly unlikely a judge would order some form of shared or joint custody of your pet.

Recent decisions, however, have challenged the status quo. The Court of Appeal of Newfoundland and Labrador case, Baker v. Harmina 2018 NLCA 15, involves a Bernese-poodle mix, Mya, who was “treated as a family member”. The couple had moved in together a short time after purchasing the dog, but when the couple separated a legal battle began over who got to keep her. Although In the end, the majority of the court considered the status quo property argument, Justice Lois Hoegg dissented in part, describing the issue of who owns Mya as being more complex than simply who bought her. Justice Lois Hoegg considered questions like:

  • Was the animal acquired during the relationship?

 

  • Who bore the burden of the care and comfort of the animal?

 

  • Who paid for the animal’s upkeep?

 

  • Who cared for it?

 

This could set the tone for future cases.

In conclusion, Velletta & Company can certainly help you in establishing an adequate way of dealing with the issue, or alternatively, moving forward in establishing your court case. Contact us today!

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

Challenging a Will in British Columbia

Challenge_wills

In British Columbia, the Last Will and Testament of a deceased may be challenged if there are doubts about its validity or fairness. Inheritance is a subject fraught with emotion for will makers and beneficiaries, especially when it comes to the allocation of assets. Sometimes feelings of unfair treatment can trigger disputes over the validity and fairness of a will. The Wills Estates and Succession Act (WESA) sets up ways in which a will may be challenged, and anyone thinking about changing or challenging a will in B.C. would do well to speak with legal counsel on the following:

 

Validity

Contesting a will for its validity is open to the executor and any person interested in obtaining a declaration as to the validity of the will. There are four primary ways that validity of a will can be contested in B.C., each of which relates to “suspicious circumstances.”

The first of these suspicious circumstances has to do with the formalities surrounding the preparation and execution of a will. Previously, failure to meet certain formalities was fatal to a will, now however, defective wills may be saved under WESA.

The second circumstance is where the will maker lacked the testamentary capacity to understand what was going on when they signed their will. This can be a complicated matter. Advanced age is often associated with diminished cognitive function, but there are varying degrees of mental capacity and there is no standard of perfection when it comes to determining what a person understands. Testamentary capacity requires that a will maker understand the nature and quality of the act in which he or she was engaged when they made their will, but this does not mean that a will maker must meet a stringent standard to be of sound and disposing mind and memory. In essence, what is required is an awareness of the effect of the will, and freedom from mental disorder.

The third way in which the validity of a will may be challenged is if the will maker did not know or approve of its contents.

Lastly, and perhaps the most contentious circumstance, is “undue influence”. The elderly can be vulnerable to coercion and fraud, particularly in situations of dominance and dependence. Traditionally, the burden of proving undue influence rested with the party challenging the will, and it was that party who had to prove coercion. Now however, under WESA, the party challenging a will must only establish that the alleged person of influence was in a position where there was potential for dependence or domination over the will maker and the onus of proof now shifts to the party being accused to prove that there was no undue influence.

 

Fairness

If a will is found to be valid, another way in which it may be challenged is on fairness. Unlike contesting the validity of a will, a claim to vary a will, due to fairness, is only open to the deceased’s spouse and children. Third parties and other family members do not possess the ability to make a claim to vary the will of a deceased.

The definition of “spouse” in WESA includes individuals who are legally married, or who have cohabitated for more than two years in a marriage-like relationship. It is important to note however that the definition of spouse is always changing, and courts will examine a variety of different factors to determine who qualifies. A recent B.C. Court of Appeal case affirmed a spousal relationship that existed between two partners late-in-life. Even though the couple had maintained separate residences, had kept separate finances, and demonstrated their intention to benefit their respective adult children from earlier marriages and not each other, the court upheld the decision to vary the deceased’s will in favour of his partner of 20-plus years. Conversely, a married individual can lose their entitlement to vary where the parties are separated, but not formally divorced. This is because the loss of status as a spouse happens upon separation, regardless of the duration of the marriage.

While WESA defines “spouse,” “children” are not formally defined, but the term does apply to both biological and adopted children. Neither grandchildren, stepchildren who have not been adopted, nor the will maker’s biological children who have been subsequently adopted have standing to challenge a will under WESA.

If the deceased’s spouse or children believe they have been unfairly provided for under the will then they may apply to have the will varied. Although a will maker is free to decide how he or she wishes to see their estate distributed and they have a right to how their wishes are carried out, will makers also have a legal obligation to make “adequate provision for the proper maintenance and support” of their spouse and children.

A question often asked is what can a will maker do if they are legally obligated to bequeath their estate to an estranged, abusive, or incorrigible spouse or child? In such cases, will makers can try to protect their will by including a supporting memorandum that explains their rationale for disinheritance. Such documents, however, are still reviewable, and although courts are generally reluctant to vary allocations where they fall within an acceptable range, they are still empowered to exercise their discretion if they think it is necessary to do what is just and equitable in the circumstances.

To avoid depleting the assets of an estate in order to fund litigation, will makers should be very clear about the content of their will. Individuals should consult an accountant and a lawyer about how to structure their estate to maximize the likelihood that their assets will pass as intended. It is also important that will makers are clear about where their will is located and what document or documents make up their will.

 

Natalia M. Velletta is an Articled Student at Velletta & Company. Before pursuing her passion for law, Natalia attended the University of Victoria where she obtained her undergraduate degree in Education. Natalia also worked for the Government of British Columbia under the Superintendent of Motor Vehicles.

What is the meaning of a Common Law Spouse?

Common_Law_Spouse

Many people in Canada and British Columbia live together before becoming legally married. Some people live together while never having the intention of becoming married. It is important, however, for people in all of these circumstances to understand when their relationship is considered ‘marriage-like’ pursuant to the laws of British Columbia. This is because, if a relationship breaks down the definition of ‘marriage- like’ becomes important in determining what is, and what is not, considered family property.

 

Under the provincial legislation of British Columbia, the Family Law Act (FLA), a person is considered a spouse of another person if those two people have lived in a ‘marriage-like relationship’ for a continuous period of two years or, if they have a child together.  If you are a common-law spouse or a legally married spouse and the relationship breaks down, the date the relationship became ‘marriage-like’ is the date all acquired property is family property.[i]

 

This seems as though it is fairly straightforward, however modern times are changing and certain indicators of what a ‘marriage like relationship’ is are evolving.  For example, the courts of British Columbia have found couples are becoming more and more independent of each other by having separate finances and sometimes separate homes. It is important that both parties understand when their relationship is “marriage-like” so that they can undergo steps, if they wish, to protect their interest in the event of seperation.

 

The following are highlighted characteristics from the courts as to whether or not a couple will be considered in a “marriage like” relationship:

  • How do the parties intend to portray themselves in society?
    • Did they intend to get married?
    • Did friends believe they intended to be together forever?
  • Did they have a healthy intimate life?
    • If they weren’t intimate, were they affectionate to each other in other ways?
  • Did they partake in social activities together?
  • Did the parties live under the same roof?
  • What were the sleeping arrangements?
  • Did anyone else occupy or share the available accommodation?
  • What was the conduct and habit of the parties in relation to:
    • Preparation of meals,
    • Washing and mending clothes,
    • Shopping,
    • Household maintenance,
    • Any other domestic services?
  • Did they participate together or separately in neighbourhood and community activities?
  • What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
  • What was the attitude and conduct of the community towards each of them and as a couple?
  • What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  • What were the arrangements concerning the acquisition and ownership of property?
  • Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
  • What was the attitude and conduct of the parties concerning children?

 

 

For example, in the case of Weber v. Leclerc, 2015 BCCA 492 the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed. The judge applied the correct legal test, and her findings are entitled to deference. In light of the objective evidence and the proper inferences drawn by the trial judge, she made no error in finding that the couple were in a marriage-like relationship.

 

Further, in the case of S.L.M.W. v. M.R.G.W., 2016 BCSC 272 the applicant and respondent owned and maintained two residences. As a matter of law, it is established that parties can maintain two residences and still be in a marriage-like relationship. In this case, the respondent maintained a separate residence for work purposes and this fact did not negate the court finding them to be in a marriage-like relationship.

 

As you can see understanding when a relationship becomes ‘marriage-like’ may not be straight forward. Velletta and company is a full service law firm and if you need assistance in this area, or wish to form a cohabitation or marriage agreement, please contact us.

[i] This is subject to some exceptions known as excluded property. Please note that if the parties married before they were living in a ‘marriage-like’ relationship then that is the date acquired property becomes family property.

 

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education.

Beneficiaries entitlement to financial information of an Estate

Estate_Planning_Beneficiaries

In most cases, when a person passes away they leave behind assets that form their estate. Usually, a personal representative (either an executor or trustee) is appointed to manage and distribute this estate. When receiving this role, the personal representative obtains a number of duties that they are legally required to follow. To acknowledge these duties they must swear in an affidavit that they will legally administer the deceased’s estate and be subject to these duties. This article will focus on the personal representative’s duty to account.

To account for an estate means providing information relating to two different stages, firstly about the status of the estate, and secondly about how the estate was administered and any work that was done. This information should include payments made by the estate and also any expenses and executor’s fees charged. A personal representative is required to retain detailed and accurate information of all transactions throughout their management of the contents of the estate. In some instances failing to keep accurate records can lead to the personal representative being held personally responsible for a transaction.

Specifically, there is a legal requirement that a personal representative must have their accounts approved by all beneficiaries or before a court every two years, unless it is otherwise agreed or ordered. The information that must be contained is:

  • a statement of the assets and liabilities of the estate;

 

  • a description of capital transactions, listed in chronological order;

 

  • a description of income transactions, listed in chronological order;

 

  • a statement showing the proposed fees that the executor or administrator is claiming for their work with respect to the estate; and

 

  • a statement setting out any past and proposed distributions of the estate.

Additionally, there is a common law duty to be ready at all times to provide information about the progress of the administration of the estate. Although the amount of detail under the common law duty varies based on a person’s interest in an estate, the amount of disclosure owed to a beneficiary is at the highest level. A beneficiary is permitted to inspect accounts, and other documents relating to the estate, at any point in time. Additionally, failing to account to a beneficiary after being requested to do so may result in the personal representative being ordered to pay costs of the beneficiary when the accounts are passed.

 

As you can see the duty to account is an important duty for beneficiaries and others to be aware of in the event that they are confused as to the estates financial management or its distribution. If you are a beneficiary and the personal representative is not providing you with an accounting or adequate information, it is important to consult with an estates lawyer. One of our experienced associates would be happy to provide you with the necessary advice and information to make the financial management or distribution process one that is stress-free and easy for you; all you have to do is contact us to book your first consultation.

 

 

Jade_Velletta_Company Jade grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Jade is excited to be commencing her articles with Velletta & Company in August of 2017. Although her interests reside in family law, Velletta & Company offers a broad range of experience in many different areas of law which Jade will actively engage.

The Best Separation Agreement: more about Process than Product

The_best_seperation_agreement

As family, separation, and divorce lawyers, working with clients on the breakdown of a relationship is what we do. This is one of the biggest events in most people’s life; right up there with death and taxes.

 

The process part is surprisingly the most essential to all of this. No matter how luring it may be to think that you can just download a fill in the blank agreement, you can’t. Just like organic food, it’s not the apple that is organic but the entire process: it is the seed, soil, nutrients, harvest, handling and delivery that has it travel to your plate.

 

Likewise, a Separation Agreement is not just words and paper or an electronic product that puts the appropriate checks in the boxes. Here we will go over the nuts and bolts considerations but also give an explanation of the process that will set you up for an independent future.

 

NUTS AND BOLTS

Separation Agreements are similar to all agreements between two people in an intimate relationship, be it marriage, cohabitation or even wills. However, they are far different than all other contracts you might enter into. Here is what is typically required:

 

  • The agreement must be in writing
  • The agreement must identify the parties and their rights and obligations
  • The agreement must be lawful. This means that it cannot provide rights or oblige another to do something against the law and may at times have to conform with various legislation. For instance, you cannot skip child support if there is a child of the relationship.
  • Each party to the agreement must have the ability to enter into the agreement and do so freely. Most of the time they must be an adult but a child who is a parent or a spouse may also enter into a binding agreement.
  • Each party must sign the agreement in front of a witness
  • Each party must make full financial disclosure.

 

THE PROCESS EXPLAINED

All professionals who deal with family breakdown, separation, divorce and matrimonial discord understand that there are complex realities and personal circumstances behind every relationship coming to an end. This is where the process comes into play.  The process is often the part that is put under a microscope when looking backward to see if it was fair. Unless you fairly negotiated, shared information, had proper understanding on your side and can demonstrate that those items took place; you may be in trouble.

 

Now the reason that people have a contract or Separation Agreement is to ensure that their agreement is enforceable, fair and valid. Alternatives to a formal Separation Agreement include minutes of settlement, consent orders or orders after trial are almost always more costly than a Separation Agreement which will cost an average of $2,500 to $10,000.

 

Compare that to going to court to resolve family issues or having a bad agreement set aside and you will each be looking at $5,000 to over $100,000 in legal fees.

 

Essentially, a Separation Agreement and its terms should become intertwined with your respective lives and, if done correctly, neither party will need to change it. In appropriate circumstances, a review clause can be incorporated in various topic areas. This sounds tough, right? We all change, seemingly all the time. So how does one agreement accommodate all those changes?

 

This is where we will work with you to ensure that you understand what is in a Separation Agreement. You will know specifically what is meant by each term and what rights and obligations are being provided to you. Equally and often overlooked at first are the rights and obligations that you may be giving away with the Separation Agreement and without careful planning, they may be lost forever. This is an essential point, since, unless you have contemplated a particular possibility, other lawyers could and will argue that it was not considered and so should be a reason to set the agreement aside.

 

The typical reasons a court will set aside a Separation Agreement are:

– Lack of full, complete and honest financial disclosure it is really not adequate to simply state you know or are aware of the other’s finances. Evidence, usually a sworn financial statement, will need to be demonstrated otherwise the agreement may easily be set aside, and this is even more clear now that the Family Law Act makes full disclosure a law at section 5.

– Duress, coercion, and unconscionability these can be interpreted in a variety of ways but you have to remember that the court understands that parties potentially have emotions and other factors that can amount to unfair force being exerted against a person who enters a contract. One example would include someone not having sufficient time to consider the agreement because some event was imminent, such a factor has on many occasions led to agreements being set aside.

– Failure to obtain independent legal advice people are often surprised at this but given the many necessary considerations even well intention and amicable separating parties may be faced with an agreement being thrown out because one or both of the parties did not consult a lawyer and as such were not aware of what rights and obligations they were losing by entering into a Separation Agreement.

 

As a lawyer who focuses on the diverse needs of family members at a specific point in their lives, I feel privileged to add value and understanding at this difficult time. We are often able to add significant value to these discussions and typically this can come in actual savings of taxes, and legal fees. We are confident in employing our services and aim to do this in a way that brings you the most timely and cost-effective results. In family matters, we often employ various techniques which include a multitude of dispute resolution mechanisms and always employ a strategy to advocate for you.

 

 

Michael_JakemanMichael has an undergraduate degree, a bachelor of science, from the University of Alberta and a professional degree in law, a juris doctor, from the University of Victoria. Michael serves individuals like you and has been protecting individuals rights since his call to both the bar association of British Columbia and Alberta in 2006. Michael believes clients are central to our profession and has served the legal profession in this pursuit through consulting work with both the Canadian Bar Association of British Columbia and the Faculty of Law at the University of Victoria. Learn More about Mr. Jakeman

 

 

Traveling Abroad With Your Children

Legal advice from Velletta & Company

People frequently ask whether there are different rules for divorced or separated parents when it comes to taking their children out of the country. Generally the answer is no. Unless a court order specifically says you cannot take the child from the country, the rules are the same. In a nutshell, whenever you as a parent take a child into or out of Canada, you must always be prepared to show proof that you have the other parent’s permission, or that such permission is not necessary.

Read moreTraveling Abroad With Your Children

Guardianship

Disclaimer

The new Family Law Act does not use the words custody or access. It uses “guardianship”, “parenting arrangements”, and “contact” instead.

A guardian is a person who is responsible for caring for and making decisions for a child. All parents who live together after their child’s birth are both guardians of the child. If the parents separate, they both remain guardians of the child unless they agree or a court orders otherwise.

If a parent never lived with the child, he or she is not a guardian of the child unless:

  • He or she regularly cares for the child, or
  • Has been named guardian by a court order or agreement.

Guardians have parental responsibilities. Parental responsibilities include decisions about:

  • Daily care of the child
  • Health care
  • Religious upbringing
  • Extracurricular activities
  • Where the child lives.

Parental responsibilities can be shared between guardians, or assigned to a single guardian. If guardians share parental responsibilities, they are supposed to consult each other when making decisions.

Spousal Maintenance

Family law, Velletta & Company, Victoria, BC

Spouses, whether married or common-law, are obligated to provide spousal support or maintenance upon the breakup of their marriage.

While there is an obligation to support a spouse following a breakup, spouses also have a corresponding duty to become and remain self-sufficient. There is, therefore, the obligation to support a spouse, pitched against that spouse’s duty to become and remain self-sufficient.

Read moreSpousal Maintenance

What You Need to Know About the New Family Law Act

Disclaimer

The Family Law Act (FLA) is a new law that came into effect on March 18, 2013 in British Columbia. The FLA governs issues such as parenting arrangements and responsibilities after separation, dividing family property, spousal maintenance and child maintenance, protection orders, and legal parenthood (although the Divorce Act (Canada) also applies to some of these issues in the case of married couples).

The FLA includes many changes from the previous law, and so the terminology or information you have heard about in the past may be different now. For example, words like custody and access have been replaced (guardianship and parenting time).

The FLA takes a child-centric approach, in part in an attempt to respond to research which indicates that conflict between parents is one of the strongest predictors of poor child outcomes. The FLA represents a shift from focusing on the rights of and relationship between the parents towards focusing on the relationship between the child and each parent.

The FLA was designed to encourage parties, and particularly parents, to resolve their differences and any legal disputes without going to court. The FLA specifically states that resolution out of court is preferred. Because the FLA encourages negotiated settlement, it also sets out requirements for parties and for family dispute resolution specialists (lawyers, mediators and other legal professionals). Specifically:

(1) Parties to a family law dispute are required to provide to the other spouse full and true information for the purposes of resolving a family law dispute. Agreements about financial issues (maintenance, division of family property and debt) which are negotiated based upon incomplete or inaccurate information are likely to be set aside or varied.

(2) Lawyers are required to assess for, among other things, family violence, in order to protect the client’s safety and to assist clients to choose the best option to resolve their family law disputes.

(3) Parties, lawyers and judges are required to consider only the best interests of the child when making agreements or orders about parenting arrangements. If family violence is present, the courts are required to take that into consideration when deciding what is in the child’s best interests.

Property Division

Family law, Velletta & Company, Victoria, BC

Upon divorce or separation, family property and debt gets divided, but each spouse keeps their own excluded property.

The law assumes spouses will share family property equally, but excluded property belongs to the spouse who owned or received it. However, if excluded property appreciates in value during the relationship, that increase in value is considered family property, and is subject to division.

Read moreProperty Division

Common Law Relationships and Separation

Separation advice Victoria BC lawyers

Even if you are not married, if you live with another person in a marriage-like relationship that person may be considered your spouse.

In order to be considered a spouse for the purposes of dividing property or debt you and the other person must have lived together in a marriage-like relationship for at least two years.

Read moreCommon Law Relationships and Separation

Child Support

Velletta & Company Family Law, Victoria, BC

Child support or child maintenance

Each parent and guardian of a child has a duty to provide support for the child, unless the child has a spouse, or is under 19 years of age and has voluntarily withdrawn from his or her parents’ or guardians’ charge. If a child returns to his or her parents’ or guardians’ charge, their duty to provide support for the child resumes.

Read moreChild Support

Mobility Applications

Disclaimer

Sometimes a parent wishes to move with a child or children. This is commonly referred to as a mobility case or mobility application.

The focus is on the best interests of the child, not the interests and rights of the parents.

The court will generally consider the following factors in deciding whether the parent should be permitted to move:

  1. Parenting capabilities of and children’s relationship with parents and new partners;
  2. Employment security and prospects of each spouse and, where appropriate, their partner;
  3. Access to and support of extended family;
  4. Difficulty of exercising proposed access and quality of proposed access if move is allowed;
  5. Effect upon children’s academic situation;
  6. Psychological and emotional well-being of children;
  7. Disruption of children’s existing social and community support and routines;
  8. Desirability of proposed new family unit for children;
  9. Relative parenting capabilities of either parent and respective ability to discharge their parenting responsibilities;
  10. Child’s relationship with both parents;
  11. Separation of siblings; and
  12. Retraining or educational opportunities for the moving parent.

Common Law Relationships and the New Family Law Act

The new Family Law Act Gives Property Rights to Common Law Spouses

Many people do not realize that under the current Family Relations Act, unmarried spouses do not have property rights. That will change when the new Family Law Act (FLA) comes into force on March 18, 2013. The new FLA treats unmarried spouses just like married spouses when it comes to dividing property and debt, with one important difference: separated, unmarried spouses have to make a claim for property and debt division within two years of the date they separated. Separated married spouses do not have time limitation.

[A spouse is someone who is married to another person, or who has lived with another person in a marriage-like relationship for at least two years.]

The FLA says that separated, unmarried spouses have two years from the date of separation to bring an application for property and debt division. Since the FLA comes into effect on March 18, 2013, couples who separate less than two years before the Act comes into effect (so March 18, 2011) have to follow the new rules.

So what law will apply to you?

If you separated before March 18, 2011 but haven’t yet applied to divide property, you are not a spouse (at least for the purposes of property division) under either the old Family Relations Act or the new FLA.If you separated on or after March 18, 2011 but haven’t yet applied to divide property, then you are a spouse under the FLA. You can start a case now, under the existing rules, but once March 18, 2013 comes around, the new rules for dividing property will apply to you, and you will have to change your application to follow the new rules.In you separated on or after March 18, 2011 and you have already applied to divide property under the existing rules, you have until March 18, 2013 to resolve your case under the existing rules. After March 18, 2013, the new rules will apply to you.

What does this mean for you?

If you are an unmarried spouse and want to make a claim for a share of property owned by your spouse, you may want to wait until after the new FLA comes into effect.

But, if you are the unmarried spouse who is the property owner, it makes sense for you to resolve your case quickly, before the new law comes into effect, otherwise the new rules will apply to you.

Obviously, these are complicated issues, but one thing is clear: If your common law relationship is ending, or ended recently, you should seek the advice of an experienced family specialist.