The Federal Government is Looking to Overhaul the Divorce Act

Much like the government of BC did in March, 2013, the Canadian government is looking to overhaul the Divorce Act to encourage dispute resolution for families that is less conflict laden. A good article can be found in this National Post Article by Ryan Glass

Relocation with Your Child

DO YOU WISH TO MOVE WITH YOUR CHILD TO ANOTHER CITY, PROVINCE, OR COUNTRY?

The Family Law Act of British Columbia came into force on March 18, 2013 and made significant changes in the law governing relocation with children. If you would like to move with your child to another city (even a neighbouring city), province, or country, the important information below may apply to you.

 

According to Section 65 of the Family Law Act, “relocation” means a change in the location of the residence of a child or a child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with (a) a guardian, or (b) one or more other persons having a significant role in the child’s life.

 

If you are:

1)     a guardian of the child;

2)     plan to relocate by yourself, relocate the child only, or relocate with the child; AND

3)     there is an existing written agreement or court order respecting parenting arrangements or contact with the child.*

*If you do not meet these criteria, different laws apply to you. Book a free 30 minute consultation with one of our family lawyers to discuss your rights and obligations.

 

You are permitted to move with the child if you:

1)     give all other guardians and persons having contact with the child at least 60 days’ written notice of

a.     the date of the relocation, and

b.     the name of the proposed relocation.

     AND

2)     other guardian(s) of the child DOES NOT file a court application for a court order to prohibit the relocation within 30 days after receiving the notice.

 

If you meet the criteria above, you can move with the child on or after the date you set out in your written notice of relocation. 

 

An important note regarding the delivery of the written notice: Ensure there is proof of delivery of the written notice in case the other guardian(s) later allege that they did not receive the required notice. The best practice is to have the notice served personally by a third party.

 

Read sections of the Family Law Act governing relocation -  S.66, 67, and 68

 

Exception to the Notice Requirement

According to Section 66(2) of the Family Law Act, the Court may grant an exemption from all or part of the requirement to give notice to other guardians or persons having contact with the child, if it is satisfied that:

1)     notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

2)     there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

 

Book a FREE 30 minute consultation to discuss your rights and options respecting relocation with a child (commonly referred to as “mobility cases”). Our experienced family lawyers can assist you with understanding the law governing relocation with children, drafting and delivering the written notice of relocation, negotiating with the other guardian(s) if they object to the relocation, and if relocation is agreed upon, to help you and the other guardian(s) establish a new parenting arrangement and parenting-time schedule. 

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Family Trusts Under the Family Law Act

People are turning more frequently to family trusts for estate and tax planning purposes. While trusts are good tools for this purpose, care needs to be taken to examine how those trusts may be handled by the Courts when beneficiaries of the trust face their own marital separation. 

The Family Law Act that came into force on March 18, 2013 states that a beneficiaries' interest in a family trust is an excluded asset, not subject to division. The growth of the value of the assets held by that trust, however, may be subject to division. This will prove problematic where beneficiaries are unable to force the creator of the trust to pay out the division, and where there may be multiple beneficiaries to the trust. The beneficiary is normally not entitled to liquidate the assets of the trust, resulting in a problematic situation where the former spouse may have a claim that the beneficiary is unable to pay. Part of the solution may be to require beneficiaries to have marriage agreements that set out how the family trust will be treated upon marital breakdown.

If you are considering setting up a family trust, entering a relationship as a beneficiary of a trust, or are facing separation and are concerned about the treatment of your interest in a trust, contact Paine Edmonds LLP for a consultation to discuss what options are available to you. 

Changing Your Names on Accounts and Designations on Separation

This is an American article published by Forbes, therefore not all of the advice applies to our Canadian clients. However, it is important at the time of a separation to put your mind to things that should be changed immediately, such as beneficiary designations, bank accounts and automobile insurance. 

If you are considering or facing a separation, come see us at Paine Edmonds to discuss what steps you need to take to protect yourself and your loved ones. 

Admissibility of Facebook Posts

In the recently released decision of K.M. v. J.B., 2013 BCSC 2041, the Honourable Mr. Justice Butler considered the admission of Facebook postings obtained by the wife, who had accessed the husband's Facebook account with his password, given to her during the parties' relationship. The Court admitted the postings, finding that the evidence was reliable and not private, as it was broadcast to an audience who could share the posts. The Court said:

[6]             Prior to setting out the facts and my analysis of these issues, I must provide my ruling on an evidentiary issue that arose early in the trial. The claimant wished to make reference to screen shots she took of the respondent's Facebook pages. The respondent took the position that these were inadmissible on the basis they were private and had been obtained either illegally or wrongfully. The postings showed the respondent's activities at times when he was supposed to be exercising access according to the interim order. The postings also contain some negative comments about the claimant and information about the respondent's work. I indicated to the parties I would hear the evidence to consider the question of relevance which has a bearing on admissibility.

[7]             The law regarding wrongfully obtained evidence in family disputes was thoroughly canvassed in Mathews v. Mathews, 2007 BCSC 1825. At para. 43, Barrow J. succinctly summarized the proper approach to admissibility of such evidence:

From the foregoing, it is clear there is a limited discretion to exclude relevant evidence in this context.  The judicial exercise of that discretion involves a balancing of competing interests which can be usefully viewed as assessing the probative value of the evidence as against its prejudicial effect.  It does not involve the application of the Charter per se.

[8]             In Mathews, the evidence was admitted in circumstances where the father entered the mother's room surreptitiously and removed a diary from a locked box. The court concluded the actions of the father, while not illegal, amounted to a violation of the mother's privacy. The evidence was admitted as it was reliable and probative and there was no prejudice to the trial process. The existence of prejudice created by the "odious" practice of secretly intercepting private communications was offset by the prejudice that would arise by excluding the evidence. The administration of justice favours the admission of probative reliable evidence which is relevant to the best interests of the children.

[9]             In the circumstances of this case, I have no hesitation in ruling the evidence is admissible. It is relevant to the parenting question I must consider. The postings are reliable as they are the respondent's own comments to his circle of friends. Unlike the situation in Mathews and other cases which have considered this issue, little prejudice arises here from the manner in which the communications were obtained. The respondent gave his Facebook password to the claimant when they were together. After they separated he knew she still had it. The claimant admitted she probably should not have been looking at his account, but he was aware she could do so. Further, his postings were not truly private communications. They were available to be seen by a group of friends and could have been shown to others or passed on by the recipients. In these circumstances, the respondent had no real expectation of privacy in his postings.

[10]         There is no possible other prejudice in these circumstances. Indeed, the interests of justice would not be served if the court could not consider evidence which is relevant to the best interests of C.B. Exhibits A through D are accordingly admitted in evidence.

Return of the Engagement Ring

CBC reports on a couple who were fighting over ownership of the engagement ring after the relationship went sour (find the CBC story here). Generally, jewelry, including engagement rings, are considered gifts and are not property to be divided or returned on the breakdown of the relationship. In rare occasions, the Court will order the return of the ring, in circumstances where there appears to have been no real intention to marry or the jewelry is considered a promotional item, worn to impress others about the status of the couple. 

Rarely is it ordered that an engagement ring be returned and most lawyers will advise their client against going to Court on this issue alone.  In situations where there are other matters at issue, the party who gave the ring can ask for its return as a part of an alternative dispute process, however, if the matter goes to Court it is unlikely that the Court will order its return as they are seen as personal property and not assets. 

When Mental Health Becomes a Childcare Issue

The case of Allyson McConnell (read about her case here), the woman who was convicted in Alberta of drowning her two young sons in her bathtub, highlights the challenges faced in divorce when one party suffers from mental illness. In cases where there is a concern about a person's capacity to care for children due to mental illness, there are tools available to assess and examine fitness to parent. If the applying person can demonstrate that there is a genuine concern, their lawyer can demand medical records relating to the issue and request a custody and access report be issued by a qualified professional, who will review records, interview the parties and the children, and make recommendations for a parenting plan that addresses concerns respecting safety and care of the children.

The challenge with these expert reports is cost: these reports can cost upwards of $10,000. There are alternatives to using these reports, so if you are on a more limited budget, ask your lawyer to discuss how you can ensure that these concerns are raised and addressed. Where there is an established foundation of a risk to the children's safety, using paid or family supervisors during access can be a way to alleviate concerns until the health issues are adequately addressed.

Aquilini Divorce Reaches Settlement and Highlights the Benefits of Out-of-Court Settlements

The high profile divorce of Canuck's co-owner Francesco Aquilini has been settled out of court on the eve of trial. Click here for CBC's report. As with all cases, but particularly high profile cases which may attract more readers, an out-of-court settlement is desirable and it maintains the privacy of the parties. Divorce cases can result in substantial disclosure of private information into the public domain. Many people are surprised to discover that even a chambers application can result in a publicly reported decision that can be accessed and read by anyone with a computer. The only way to keep this information out of the public domain is to reach a settlement, as Courts are reluctant to grant orders prohibiting public access to a Court hearing or result. 

In addition, courtrooms are generally accessible to the public. Anyone who is not a witness in a trial is welcome to come and sit through a trial or hearing, where the details of someone's greatest life challenges are brought out in this public forum. The new Family Law Act that came into force on March 18th of this year encourages out of court settlement, and privacy concerns are just one reason. Out of court settlement, if possible, is considered in the best interests of the parties, as litigation is not only a massive financial burden for the parties to bear, but it often causes such substantial damage to the relationship between the parties that future cooperation, especially with respect to children, is compromised. 

At Paine Edmonds we always strive to reach an out of court settlement wherever possible. 

With divorce trial about to begin, Francesco Aquilini moves to protect privacy

Understandably, Fancesco Aquilini is concerned about the level of exposure that all details of his personal and professional life will suffer when his 6-week trial commences on Monday. See the article here: With divorce trial about to begin, Francesco Aquilini moves to protect privacy

Disclosure in Family Law Cases

Financial disclosure is an issue that arises in all family law files. Whether there are issues respecting child or spousal support, or if there are assets and debts to be divided, financial disclosure is a foundation step before lawyers are able to advise their clients on these issues. The first stage usually involves the completion of a Financial Statement, which is a formal document that lists the parties’ assets and debts, as well as their income and expenses. Come to your lawyer prepared to complete your Financial Statement, which should attach your last three years’ income tax returns and Notices of Assessment, your last three paystubs from any employment, as well as any available statement for each asset and debt listed in your name or for which you are responsible. Depending on the issues on the file, more disclosure is often required and sometimes those obligations can be onerous. For example, several years of account statements may be required if there is a concern that there has been a wasting or transferring of assets. If there is a family business or significant shares in a corporation, significant disclosure may be required respecting the dealings of that corporation, such as interim and historical financial statements, funds paid to non-arm’s length persons (such as family members), bank statements and inventory and asset lists.

Many clients find the disclosure requirements to be cumbersome and invasive. This is a natural reaction to the litigation process and is one of the components that leads to litigation fatigue. However, avoiding disclosure obligations will often result in the opposing party making a court application for the documents that they seek. If the documents are deemed to be relevant to an issue in the case, the Court will likely order its production. In addition to paying your lawyer’s legal fees, you will likely be ordered to pay some of the costs of the other party, and in the most egregious of cases, a fine of up to $5,000, as set out in section 213 of the Family Law Act.

Early in your case, at Paine Edmonds we will have a discussion with you respecting disclosure and what your obligations will be as your file proceeds. Your file will likely resolve quicker and at less cost if you are proactive in obtaining the disclosure that your lawyer advises will likely necessary. Attempting to avoid your obligation to disclose information will often result in increased costs, but may also injure your credibility, which is one of your most important assets down the road should you ever be in trial.

Further, the new Family Law Act takes into consideration assets and debts existing at the beginning of the relationship, as well as any gifts or inheritances received during the relationship. The party that brought those assets into the relationship may be able to take their original value back out of the asset pool prior to the remaining assets being divided between the parties. Subsequently, some investigative work may be required to obtain the proof necessary of both the ownership and value of those assets at the start of the relationship, as the onus lies on the party that wishes those assets to be exempt from division to prove their original value and ownership. The more documentation that you bring into your meeting with your lawyer, the more equipped your lawyer will be to advocate for you effectively and resolve the issues on your file.

Entitlement to Spousal Support - Not a Guarantee

The recent British Columbia Supreme Court considered an application by a husband for spousal support of his wife of 20 years. The wife, a school principal, earned $120,000 per year while the husband earned less than $12,000 per year as an uncertified fitness instructor. The parties had accumulated significant debt during their marriage that left little equity in the family residence once those debts were satisfied.

The husband argued that, due to the disparity in incomes, he had need that justified spousal support. The husband argued that he was permanently disabled from a previous motor vehicle accident. However, his  evidence was contradicted at trial by the surveillance video of a private investigator, that showed him engaging in significantly taxing activities. The husband provided no medical evidence other than his own testimony to support his claim that he was permanently disabled.

In denying the husband spousal support, and requiring him to repay his wife all support received while waiting for trial, the Court found that he was not entitled to support as he had made no reasonable effort to find suitable employment or advance his career.

http://www.courts.gov.bc.ca/jdb-txt/SC/13/12/2013BCSC1227.htm

Thinking About Leaving? Timing and the New Family Law Act

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

Whether you are currently living in a common law relationship or are married, if you are thinking about ending your relationship, the current state of the law invites you to put your mind to the timing of your exit.

While this post may seem iterative of the earlier post titled Property Now, Property Later, as the induction of the new Family Law Act nears, men or women thinking about leaving their significant other are pressed to take a critical look at how the timing of their exit may affect their property rights down the road.  If you are in the difficult position of deciding to end your marriage, and you share or have assets that either existed prior to your marriage or have been inherited since, leaving now rather than waiting until March of 2013 may have a significant impact on the eventual division of assets.

On March 18, 2013, British Columbia’s new Family Law Act comes into force, and any new litigation commenced at that time will be decided in accordance with its terms. Currently, division of assets is handled by the Family Relations Act and only applies to married couples. There is a presumption of an equal division of family assets under the current law, and the onus lies on the party seeking a greater piece of the pie to demonstrate that it would be unfair for the Court to do otherwise.

Currently, common law couples have no presumptive right to the assets of the other party, and the party seeking any of the assets of the other bears the onus to prove that they have made a contribution that justifies their claim to part of those assets.

Under the new Family Law Act, couples who are either married or common law, will share equally in the growth that accrued in the value of any assets during the marriage, but the initial value that a party brought into the marriage can be taken back out by that party. Further, if you inherited assets while married, you can also take those assets out of the marriage, minus half of any growth in the value.

As the new law is just around the corner and provides for significant changes to how assets are divided, people thinking about leaving would be wise to see a lawyer to discuss their situation and whether a separation prior to the new law coming into place will attract a significantly different result than if you hunker down and wait it out.

Does a father have to pay support for children from a previous marriage if he elects to be a stay at home dad for the children of his second marriage?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

In September, 2012, the British Columbia Court of Appeal considered a case where a father remarried and had a child with his new wife, electing to stay at home with the new child and subsequently reducing his income to zero. He then argued that, due to his status of earning no income, he could not pay support for the children from his previous marriage.

The children from the prior marriage were in their teen years. The children resided solely with the mother and had little to no contact with their father. The father lost his job in 2008 and discontinued paying support that had been previously ordered at $760 per month. The mother sought to obtain the arrears and impute income to the father, who she argued was employable and should have his income imputed for the purpose of child support.

The father argued that he should be permitted to stay at home to care for the new child until she became old enough to start going to school full time.

The Chambers judge allowed the father a period of time akin to maternity leave to be free from the obligation to pay support, but then imputed an income to the father after that point. The BC Court of Appeal upheld the ruling that relief from child support for children of a previous marriage based on obligations to children of the new marriage should be limited to the normal period of paternity or maternity leave:

The question is therefore whether the appellant’s decision to stay at home and care for his youngest child of a subsequent marriage, is one that in the circumstances of this case lawfully excuses him from his child support responsibilities to his two older children.

[35]         This Court had occasion to consider this same issue in McCaffrey v. Paleolog, 2011 BCCA 378, 24 B.C.L.R. (5th) 62 and specifically the application of s. 19(1)(a) of the Guidelines. That section provides as follows:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) include the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

[36]         After first noting that each parent bears responsibility for the support of their children under s. 19 of the Guidelines, Justice Chiasson, writing for the court in McCaffrey, referred to the general principles concerning the imputation of income from Donovan v. Donovan, 2000 MBCA 80, 190 D.L.R. (4th) 696 at para. 21 as follows: (adopted by this court in Watts v. Willie, 2004 BCCA 600) (at para 46):

1.         There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor” (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)).

2.         When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

3.         A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

4.         Persistence in unremunerative employment may entitle the court to impute income.

5.         A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

[37]         He then summarized the law in respect to imputation of income to a parent who has decided to stay home and care for a new child in the following way:

[58]      In summary in a case like this:

1.         income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the  needs of a child require the parent to remain at home;

2.         it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but

3.         childbirth does not provide an automatic relief from a parent’s child support obligations;

4.         the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan (2000), 190 D.L.R. (4th) 696 (Man. C.A.) as adopted by this Court in Watts v. Willie, 2004 BCCA 600;

5.         any period of non-support must be reasonable in the circumstances.

[59]      In my view, the circumstances to be considered include a consideration of the financial condition of the payor parent’s present family. It is the needs of the child of that relationship that are in issue. In some situations the financial circumstances of the first family may be relevant: for example, where the second family is very affluent and the first family is destitute. The circumstances may compel an almost immediate return to work or may provide for full or part-time in-home assistance. Assisted care or day-care may not be available readily or be available only on a limited basis. In considering the applicability of s. 19(1)(a), the court should be given every assistance by the parties so as to take into account all relevant factors that bear upon the reasonableness of a period of relief from child support, always recognizing that in a case like this the burden is on the parent who seeks an hiatus from the obligation to provide child support to prove that a period of underemployment or unemployment is required by the needs of a child.

[38]         See also Barker v. Barker, 2005 BCCA 177, 45 B.C.L.R. (4th) 43 at para 19.

[39]         In applying McCaffrey and the principles in Barker to the facts of this case I note first the evidence of the appellant’s present wife, contained in an affidavit of the appellant, in which she states:

My job commitments require me to work irregular and extended hours, sometimes without advance notice, and I am frequently required to travel for days at a time, making outside childcare virtually impossible. Additionally we have no family nearby, who would be in a position to assist us.

It is a core value of ours to have a parent at home with […] until she attends school. It is in […] best interest to be raised by her parents, to have consistency to her schedule and to be in her own home, and her own crib at nap time. We are not prepared to relinquish control of her environment to strangers during these very formative years for emotional and cognitive development. Patrick is therefore required to stay at home and care for her.

This has turned out to have been the best decision for all concerned. […] has bonded very strongly with her father and Patrick has been given an opportunity to focus his love and attention on his daughter subsequent to his estrangement with his other two girls. I see […] developing into a happy, secure, interactive child.

[40]         The chambers judge was not satisfied on this evidence that it was necessary for the appellant to remain at home on a full time basis with his child. This relief from payment of child support will, in any event, rarely extend beyond the usual parental leave period. The judge noted the financial needs of the respondent and her children and the very difficult financial circumstances in which the respondent was endeavouring to support the children. There was no evidence of any special needs of the appellant’s child of his second marriage. There was very little in the way of evidence of the appellant’s own financial circumstances and, as I have already mentioned sparse evidence concerning his inability to find employment. The judge noted the evidence of the appellant’s previous work experience. He concluded that the appellant was not justified in refusing to pay child support. I agree with the conclusion of the chambers judge.

To read the case, go to http://www.courts.gov.bc.ca/jdb-txt/CA/12/03/2012BCCA0378.htm

Baby Daddy, Baby Momma - Determination of Paternity Under the Family Law Act

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

On March 18, 2013, British Columbia’s new Family Law Act comes into force, replacing the former Family Relations Act. The new Family Law Act seeks to legislate presumptive rules around parentage in a society where the structure of the family is moving further and further away from the traditional married, heterosexual parental unit. As families are becoming generally more complicated, so is the law.

Where a child is born in a heterosexual relationship where the parents are married, the father is presumed to be the father. Once presumed to be the father, the onus lies on him to make an application for a paternity test to prove otherwise.

Where a child is born to parents as a result of a donor, such as a same sex couple who utilizes assisted reproduction to have a child, the two same sex partners are the parents of the child and the donor is not. This principle also applies to heterosexual couples who access assisted reproduction as well.

Where a child is born to a surrogate on behalf of another couple, the intended parents of the child and not the surrogate will be the parents of the child only if the surrogate gives permission in writing to both the parentage and after the child is born gives written permission to surrender of the child into the care of the intended parents.

Oddly, the new legislation provides that a father is presumed to be the natural parent of a child if he was married to the mother within 300 days of the child’s birth. In most normal circumstances, a divorce requires the parties to live separate and apart for one year prior to an order for divorce being granted. The average human gestation period, according to Wikepedia, is 259 - 294 days. So, theoretically, a man may have left his marriage a full 624 to 659 days prior to his former wife having a child, and still could be placed in a situation where the onus is on him to prove that he is not the father. Maury Povich anyone?

Property Now, Property Later

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

At the time of the writing of this post, the division of property upon the breakdown of a marriage is handled very differently under the Family Relations Act than the division of property upon the breakdown of a common law relationship. Married couples have a presumptive right to half of the “family assets”, unless the other party can demonstrate that it would be unfair to not reapportion the division of property in their favor.

Sometimes, there is property that is not automatically subject to division. Current legislation applies a “family purpose test” that allows property to be excluded if it was not used for a family purpose. An example of this would be property that one party owned prior to the marriage that is not used or invested in by the parties during the relationship.

Common law couples, on the other hand, take away only what is registered in their names. If they wish to make a claim on an asset that is registered in the other party’s name, they must make an application seeking a finding of constructive or resulting trust. Put plainly, they have to show that they made a contribution to the property to the other party’s benefit and their own detriment that justifies them having a claim against that property. Arguments seeking a declaration of trust can be very complex and can result in expensive litigation.

The new Family Law Act, that comes into force on March 18, 2013, changes this up. Under the Family Law Act, common law couples and married couples are subject to the same rules regarding division of property. There is no longer a “family purpose test”, and all property brought into the relationship can be taken out by the original party owning that property. However, any growth in the equity or value of the property is subject to an equal division, regardless of whether it was used for a family purpose or not. Any inheritances received during the relationship can be taken out by the inheriting party, subject to division of any growth.

Due to the radical change in the rules surrounding the division of property, there will be a period of growing pains, where the new legislation is tested in the courts and the true effect on separating couples will be refined and clarified. It is anticipated that argument that was once focused on the “family purpose test” and trust arguments will now be replaced with arguments around the exact dates of the start and end of the relationship, and values of assets at both of these points in time. 

Adultery

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

According to a study completed by the Institute of Occupational Health at the University of Burmingham, (link) divorce is the 9^th most stressful event that a person will likely face in their lifetime. Women and men suffer equal amounts of stress from divorce. Infidelity of a partner, however, generally causes somewhat more stress in women than men.

So how does this play out in the legal field? In short, it shouldn’t. The Divorce Act (Canada) prohibits the Court from considering the conduct of the other party, except where it goes to their ability to parent a child. The Courts will not consider adultery, and most judges will not want to hear evidence about the alleged adultery of the other party. Theoretically, a party can obtain a divorce more quickly if their former spouse has cheated, however, the time it takes to prove the adultery may bring you past the standard 12 month period of separation where anyone can obtain a divorce, and in the end significantly increase your legal fees. You can not obtain a divorce based on adultery if you were the person committing the adultery – the opposing party has to make that application.

Where adultery does have the most impact is during negotiations between the parties. Without a good counsellor, it is sometimes difficult for the injured party to separate their hurt and anger from the position that they are taking on individual issues. Files where infidelity has taken place can be more difficult to resolve, as the spouse who has been the ‘victim’ of adultery may be seeking validation and retribution through the legal process. Success in resolving these files through negotiation relies heavily on the lawyer’s skills in helping their client separate their emotional process from the legal.

In the event that you are the injured party, be careful to consider this separation between the legal and emotional process. The emotional process is valid and important to address, but there is little space in the legal realm to validate your hurt feelings. Even worse, if negotiations have been difficult because the injured party wants to punish their former spouse and the file ends up in court, the judge may find that the evidence lead by the injured party bears less weight, because it has been tainted with the desire to punish their spouse for their adultery. 

How Family Files are Billed

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

In British Columbia, family lawyers can not take a case on a contingency basis (where they receive a percentage of the final amount awarded at the end of trial or settlement). Family lawyers require clients to pay a lump sum up front, called a retainer, which is held in their trust account to be used to pay bills as they are issued. The amount of your retainer depends on the complexity of your case and the estimate of the amount of work involved. When that retainer is depleted, you will be required to replenish the retainer to the original amount, or more if attempts to negotiate a resolution have not been successful and you and your lawyer decide together that litigation is necessary.

The amount of your initial retainer will be established at the outset upon an analysis of the work to be done. This amount can range from $2,500 to $25,000, depending on the issues and status of your file. If a trial date is set, you will have up until 60 days prior to your trial to pay your trial retainer, which is normally set between $5,000 and $7,500 per day of trial. Any funds that remain after your file is resolved will be paid to you once your final account is satisfied.

Lawyers traditionally bill in 6 minute increments, or 1/10^th of an hour. It has become growing practice by some lawyers to charge their minimum amount of time as 0.2, or 12 minute increments, for any matter taking 12 minutes or less (such as reading an email or taking a phone message). At Paine Edmonds, we have not followed this practice and continue to bill in 0.1 hour increments.

Other costs associated with your file will be taxes and disbursements. Disbursements are any costs incurred on your behalf, such as courier fees, faxes, copying, filing fees or long distance phone calls. Sometimes significant disbursements, such as medical reports or costs for a mediator, will need to be paid by you directly, especially in cases where the disbursement risks depleting your retainer.

The lawyers at Paine Edmonds know that the costs involved in litigation can be scary, and that often our clients are at risk of depleting critical personal resources while attempting to resolve your family law issues. We will engage in a cost-benefit analysis with you, so that you can feel confident that you are spending your money effectively during this difficult time. We will work hard with you to explore options for resolving your file in the most cost effective manner, while continuing to advocate for the best possible result.  

Are We Common Law?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

Family law in British Columbia is currently governed primarily by two pieces of legislation; the Divorce Act (Canada), which is federal legislation, and the Family Relations Act, which is provincial legislation.

Unmarried couples do not fall under the jurisdiction of the Divorce Act, and so must seek their relief under the Family Relations Act. The Family Relations Act defines spouses to include a couple who have lived in a “marriage-like relationship for a period of at least 2 years”.

Under the Family Relations Act, a common law couple who has resided together for two years can seek relief for child and spousal support, but has no recourse with respect to property. Currently, if you are leaving a common law relationship and the property is held under the name of your spouse, you must make your application for its division under the law of trust. This is complicated law that requires you to prove your entitlement in proportion to your contribution, and you must demonstrate that your contribution was to the benefit of the other party and subsequently your detriment, with no juristic reason.

If a couple has lived together for less than two years, they can only make application for support of a child under the Family Relations Act. A party does not have to have lived with the other parent to seek or pay support for a child, so long as they are the biological parent of that child. Where a person has stood in the place of a parent for a period of at least one year, that party may also be liable for support of that child.

The Government of British Columbia is changing the rules with respect to property in the new Family Law Act. The new Family Law Act also defines common law relationships as a couple that has lived together for two years, but brings them under the same property regime as married couples. This act changes the old regime of a presumption of an equal division of property for married couples, and applies that presumption only to property accrued during the course of the relationship.

The definition of common law may be different under other legislation or regulations. For example, the Canada Revenue Agency defines a common law couple as two people who reside together in a conjugal relationship for 12 continuous months, or reside together for any period of time and share a child. The Canada Pension Plan defines common law partners as two people who have resided together in a conjugal relationship for at least one year, as does the British Columbia Public Service Agency Employee Benefits program.

What is this going to cost?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

It is rare that a lawyer will be able to give you a dependable estimate of the end cost of your family file. A survey of average costs found at this link of a contested divorce indicates that the cost can range from $6,582 to $86,644. These costs can be even higher if lawyers are involved in other issues, such as communicating between the parties over childcare issues or appealing a trial decision to the Court of Appeal. There are many factors that will change the end cost of your case, only some of which are in your control. These factors may include the complexity of the situation, the dynamics of the relationship between the parties, whether there are allegations of abuse, whether there are businesses that require detailed analysis of business records, how far apart each party’s perception of a fair result is, and whether counsel for both parties are committed to working to diffuse rather than increase conflict.

The lawyers at Paine Edmonds subscribe to a philosophy that every effort should be made to negotiate a fair resolution for the parties. It is in the client’s best interests to attempt to resolve a file with the best possible result at the lowest cost, whether by settlement offer, negotiation or mediation. Where these negotiations break down or are impossible due to the dynamics between the parties, at times it can be more cost effective in the long run to make an application to court to resolve an issue, rather than engaging in protracted negotiations with little chance at success.

Other steps you can take to keep your costs down include:

- instead of  a series of short emails or phone calls to your lawyer, save your questions for an appointment or one longer email, as each email or phone call is billed separately;

- make a checklist of items that you want to discuss with your lawyer, so that you stay focused and use your time effectively;

- leave your lawyer to handle the big-picture things, and try to handle smaller items yourself. Having your lawyer involved in passing mail, arguing over lunch choices for your child at school, or reviewing every angry text shared between you and your former spouse will increase your costs significantly;

- bring in your documentation well organized. You will need to provide documentary evidence to your lawyer, such as bank statements, tax returns, paystubbs and relevant assessments. If these documents are organized in chronological date-form and by subject area, then your lawyer will spend much less time having to go through them and organize them;

- try talking to your lawyer’s assistant before talking to your lawyer. Most firms charge a reduced rate for the assistant’s time; at Paine Edmonds we do not charge for this time. The assistants are familiar with the files and can answer many procedural questions without you having to speak with your lawyer.