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

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.

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