Vancouver Divorce Lawyer - Kathleen Walker

As a rule, each party is expected to retain and pay their own divorce lawyer. If a party has no assets or funds prior to or during a case, and there are family assets to be divided, the "poor" party can apply to the court for "an advance of capital" out of the family assets to pay their divorce lawyer and litigate the case but only to litigate the case. This advance of capital may be deducted from the poor spouse's share of family assets in the final resolution of the case.

Legal Aid - Eligiblity for family law legal aid is now much more limited than it was. Still, there is no harm in inquiring to see if you qualify. Contact the Legal Services Society of British Columbia.

Tax Deduction - If you are applying for child or spousal support your legal expenses incurred to get those forms of income may be deducted from your taxable income. This can be taken in the form of a tax refund or it may even be applied to reduce your taxes at source every month, increasing your net income on every paycheque.Confer with your tax lawyer or accountant to determine whether you are entitled to claim this deduction.

Business Deduction - In circumstances where you own business interests your legal expenses may be deductible business expenses. Confer with your tax lawyer or accountant with regards to this possible deduction.

SAFEGUARD YOUR FAMILY LAW AGREEMENT: Licenced lawyers must independently explain your agreement to you and your spouse and provide you with written proof of those explanations, called "certificates of independent legal advice," as part of ensuring your agreement is protected as being valid. You might think that you have worked out a great deal that favours yourself but if your spouse does not get independent legal advice (they should also find and pay for their lawyer on their own) you risk having that great deal set aside by a judge as being unfair etc.

PREPARE YOUR PAPERWORK: Try to get as much documentation ready before you go to a lawyer's office, such as: your original marriage certificate (not a photocopy), family birth certificates, a current photo of your spouse, originals of signed agreements, photocopies of your court documents if you have already started a court case, your last three years tax returns and notices of assessment, a pay stub showing year to date earnings, current property tax assessment, corporate financial statements, RRSP and other investment statements and credit card receipts.

Unless a judge shortens the appeal (waiting period), you must wait 31 days after the Judge signs your Order for Divorce before you can legally marry. A good way to avoid the confusion and expense of a void marriage ceremony is to make sure that you obtain a certificate of divorce from the Court Registry before getting married again.

Both parties entering into the marriage must have the following qualifications:

1. be 19 years of age (must have parental consent if less than 19, must have court ordered permission to marry if aged16 or less)

3. have legal status to marry: be never married, or widowed or with previous marriage or marriages anulled or divorced in a manner which is considered valid by BC law.

The parties must comply with the formal marriage ceremony requirements to be married in BC:

1. One of the parties needs to attend in person to obtain a marriage licence from someone authorized to sell them in BC (many notaries sell them but call first) and

3. The parties must be married by a person who is lawfully entitled to do so by the BC government, a marriage commissioner.

2. be generally open to the public, unless permission is otherwise obtained, and

4. once the marriage ceremony is concluded the parties must sign and have witnessed both the marriage licence and a marriage book or register kept by the marriage commissioner.

The marriage commissioner is required to send the marriage licence to the department of Vital Statistics in Victora and keep the marriage register in his/her possession. The parties will be sent a "Marriage Certificate" from Vitial Statistics, which, incidentally, they must have to get divorced.

CAUTION: THE FOLLOWING IS INTENDED AS GENERAL INFORMATION ONLY AND IT IS NOT AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. CONSULT WITH A LICENCED, QUALIFIED LAWYER FOR ADVICE SPECIFIC TO YOU AND YOUR SITUATION.

This is a critical question you really must have a BC divorce lawyer assist you with. Try to meet with a lawyer before taking this step unless your safety and wellbeing, and/or that of the children, is in jeopardy.

In general, Courts will tend to support the status quo of the case before them. If you move out of the family home without the children and then try to get interim possession of the family home and get custody of the children, you may have a more difficult time than if you apply to the Court from within the home when you have the children in your de facto (actual but not legal) custody.

Moving into separate parts of the family home, or into separate properties owned by the family, may be alternative separation solutions to moving out of the family residence altogether. If possible, you should have a written enforceable separation agreement or Court Order specifiying your rights, before changing the status quo by moving out of the family home or giving up custody of the children.

If safety is an issue however, always put safety first. If you or the children are at risk while living with your spouse, get yourself and the children away from the threat immediately and deal with that issue first.

There is no such thing as a "legal separation" in British Columbia. However, there can be a "triggering event". That is the moment during marriage breakdown when, in the Court's eyes, spouses are no longer a single legal entity for family law purposes. They become two individual legal entities.

At the moment of a triggering event, personally held property and personally held debt is transformed into "family assets" and "family debt" in order that they can be preserved, valued and divided equally or in shares determined by the Court.

Triggering events include: a written separation agreement, a divorce decree, a declaration of nullity and a declaration by a Judge that there is no reasonable prospect of reconcilitation.

The moment a triggering event takes place the Mercedes that is registered in the wife's sole name, or the heirloom carpet on the living room floor that the husband inherited, may become family assets. The same is true of R.R.S.P's, homes, bank accounts, furniture, art, boats, etc. They can all go from personally held property to become family assets to be divided by the parties in the proceeding.

Divorce and family breakdown is a very stressful time which may bring out the worst behaviour in anybody. You can get court orders on paper which can protect you (see below). Think of court orders as the lines of a crosswalk: they can only protect you if the person that you need protection from sees them and respects them. They do not provide you with "magical immunity" from violence any more than the white crosswalk lines painted on asphalt will protect you from a 2000 k car hurtling towards you, if the driver wants to hurt you and disregards the crosswalk.

You may need to take other practical steps to protect your safety and that of your children such as moving, installing security alarms, even hiring body guards if the situation is very volatile. The worst mistake you can make is to underestimate the threat to your safety. Involve the police. Let them know who you are, what your address is and describe your fears to them without downplaying those fears. They can "red flag" your residence.

It is always better to err on the side of your safety. If a family member is acting abusively or in a threatening manner with words or actions, don't second guess your fears, ask a lawyer to obtain an order from a judge which prevents that person from contacting you. If they reside in your home they will have to find accommodations elsewhere until the order expires or is set aside. If they do not comply with that order they may be picked up by the police immediately and not released until a justice of the peace can deal with them.

If they are found guilty of civil contempt of the order restraining contact they may be ordered to post security (assets) for good behaviour and risk losing that security if they breach the court order. They can also go to jail or be fined for breaching the court order.

These restraining orders are not to be used as a game or strategy. They are very serious. If you need a restraining order you must abide by the order also and not try to contact the person that is ordered to stay away from you. If that happens the order may be set aside or you may have an order against you. You have your own obligation to the community not to disturb the peace by creating conflict.

If you make a complaint of assaults, threatening or harassment to the police, crown counsel may decide to seek a "peace bond" against the offending person. That means that they don't go to jail or get in further trouble unless they breach the peace bond. That can be a criminal offence: they may be charged by the police and they may get a criminal record if they are found guilty of breaching the peace bond after a trial on that charge.

Be very careful in what you say to another person because your words may be found by a Court to form part of a verbal agreement. Except with regards to real property or land, a verbal agreement can be enforceable against you. It's enforceablity may depend on evidence of its existence such as witnesses to the verbal contract and other evidence of its existence.

While you should never agree to anything verbally without legal advice, it is just as important to never sign anything of a legal nature without taking the necessary steps to make sure that you fully understand its legal significance and agree to its terms. An ounce of prevention is worth a pound of cure.

Alternatively, if you think that you have struck a great verbal or written deal with your spouse, remember that unless you have proof that they have received independent legal advice before entering the deal, the agreement may be unenforceable against them.

Always file in Provincial Court if you are not married. You can enforce and vary a Separation Agreement filed in Provincial Court but you can only enforce a Separation Agreement filed in Supreme Court. This is an Oddity of statuatory construction that many lawyers are not even aware of.

Exception: If you are a married spouse entitled to apply for Court Orders under the Divorce Act in Supreme Court then you can apply for Orders which supercede the terms of the Separation Agreement filed there.

In other words, if you are entitled to be divorced you can get different Orders under the Divorce Act and therefore you are not limited to enforcing the Separation Agreement in Supreme Court - you can get brand new orders.

In many circumstances a Vancouver divorce lawyer can save you money by avoiding costly mistakes or proceedings. Stationary store divorce forms may cost you thousands of dollars in litigation.

Old proverb: "He who acts as his own lawyer has a fool for a client." Most lawyers do not even do their own divorces and family law cases because they may not have the expertise or objectivity. The question should be, how can you not afford to hire a Vancouver divorce lawyer?

The steps involved in getting an Order for divorce (dissolution of marriage) vary widely depending on your situation. A truly uncontested divorce where the parties have no children at all, and do not want to divide assets or assess spousal support will cost Court filing fees, agents fees and the cost of serving one of the parties. Your Vancouver divorce lawyer may need to have your marriage certificate produced by Vital Statistics or have it translated. These are extra expenses if they are necessary in your situation.

In addition to these expenses, which are called disbursements, you will be charged the divorce lawyer's fees and taxes on those fees, for her time spent drafting your Divorce documents: The Writ and Statement of Claim and the Application for a Desk Order Divorce.

After the Writ and Statement of Claim have been given to your spouse personally, your divorce lawyer will then draft the Application for Divorce which must be filed with the Court. The Court Registry staff will review the Application for a Divorce to make sure that those documents comply with the law. If the Registry are satisfied with the documents and your spouse has not filed papers contesting the Divorce, the Application for a Desk Order Divorce is sent to a Judge for his review and signature. It goes across the Judge's desk without anyone speaking to it, that is why it is called a "Desk Order Divorce".

If the Judge is satisfied that your Application for a Desk Order Divorce is in order and complies with the law he will sign the draft "Order for Divorce" which your divorce lawyer has included in the package of papers required for a Divorce Application. You are legally divorced 31 days after the Judge signs the Order for Divorce.

As a general rule the entire process may take from 2 to 6 months depending on the circumstances, although this timeline varies widely depending on how difficult it is to get your documents, serve your spouse and how busy the Judges are at the time the Application is submitted.

Your Vancover divorce lawyer may be able to give you a flat rate quote for a truly uncontested divorce. That is a divorce where both parties are easy to reach and serve, all the documents are readily available and do not need to be translated, there are no children and all that is sought is a bare order for divorce. If you are inclined you use a divorce kit remember the adage about "a person who acts as their own lawyer has a fool for a client."

If a divorce proceeding is contested the Vancouver divorce lawyer will generally not be able to quote you a flat rate and his hourly rate will apply. In Vancouver hourly rates from $150 to $300 are not unusual.

In addition to a seeking an order for divorce (dissolution of the marriage), many divorce court proceedings include claims for orders other than just a divorce. These other claims can include child custody, child support, spousal support, division of property/debt and more.

What increases costs and uncertainty in court proceedings not discribed above is conflict or disagreement. The more you want a court order, or don't want it, and the more the other party disagrees with your position and is willing to fight, the more expensive the proceeding can be. In other words, think twice before you spend $15,000 fighting over $50 wedgewood candy dish. Pick your "fights" by doing a cost benefit analysis of your goals.

Some of the most expensive litigation family lawyers do is over custody and guardianship of children. Remember when a child reaches adolescence they may go live with a parent of choice, regardless of who spent thousands to obtain an order for custody.

Many people come into a lawyer's office with the idea that what they are looking for is a "divorce". Very often more pressing needs are orders for child custody, child support, spousal support, division of property, division of debt, for sole possession of the family home, restraining contact, restraining removal or interference with children from the province etc.

An order for divorce merely dissolves the marriage. You need it before you can marry another person. It can also be a triggering event which crystalizes the legal separation of the parties (an order annulling the marriage, a written separation separation agreement, and a declaration that there is no reasonable prospect of reconciliation are alternative triggering events.)

For practical purposes, a bare order for divorce, in and of itself, does not "put food on the table or a roof over your head" and therefore it may not be your first priority. Divorce court proceedings, however, may, but do not necessarily, include claims for other types of orders also including child custody, child support, spousal support, division of family assets/debt etc. These kind of orders can put food on the table and a roof over your head but they are not the "divorce".

In Canada, a Court will not grant the order for divorce until it is satisfied that adequate provisions for the maintenance of the children of the marriage have been made. In other words the issue of child support must be determined before you are eliglble to be divorced.

Spouses can enter into any agreement about division of family assets that is lawful according to contract principles.

However, if a married couple cannot agree on how to divide their property and debt and they put their case before a Judge the following will apply: family assets are totalled up and family debt is subtracted from that number. The remaining value is the "net equity" of the family.

In theory, each party is initially entitled to 50% of the net equity remaining after the family debt is subtracted from the family equity.

That number may change depending on certain considerations the Court may take into account such as: "who brought the asset into the marriage" and "which spouse needs more assets to get back on their feet economically." That change by the Judge in the initial 50/50 net equity entitlement is called "reapportionment."

As a general rule Judges don't dole out specific assets to particular parties, they follow the formula set out above.

Custody or Sole Custody. For purposes other than child support and the Child Support Guidelines, custody or sole custody means the right to make decisions about a child. These decisions may include choice of school, doctor, dentist, daycare, after school programs etc. Parents with sole custody make these decisions. If a parent with sole custody wants to move away from the non custodial parent, this is a material change in circumstance which may open the question of custody again.

Joint custody. Parties sharing joint custody of children must share this decision making power or apply to the Court to settle disagreements.

Physical Custody is a term used by the Child Support Guidelines which refers to the time that a child is actually residing with a parent. It is used to calculate child support payable. A child must be in the physical custody of (actually residing with) a parent more than 60% of the time for the regular Child Support Guideline amount to be payable to that parent.

Guardianship means the right to receive information about the child from the person with custody and third parties and the right to make suggestions with regards to the child's upbringing. In general, however, the custodial parent has the last word in the actual decision making.

Access is a concept that is usually used with respect to "custody" above. Access refers to the time that the child resides with or visits the noncustodial parent.

Remember: Interfering with de facto (actual) custody may be a criminal offence whether there is a court order or not.

Police are more likely to step in to enforce custodial rights than access rights.

Enforcing custody and access in Provincial Court may require different procedures.

Before permitting the other parent to remove your children from British Columbia seek legal advice. Once the child is out of the jurisdiction of BC Courts it may be very difficult, expensive or impossible to get them back. Most border agents require court orders for custody, identification for the children, and the written and notarized permission of all guardians before letting a child into the country.

If you have concerns about the likelihood of your ex bringing the child back to BC, do whatever your divorce lawyer advises you including saying no or asking that they post security for your legal costs to get the children back, before they leave.

?Preparing for a Child Custody Evaluation

Today at 12:34pm

Preparing for a Child Custody Evaluation
Some families have problems that are so difficult that no one know what is true or how to decide what is in the best interest of the child. In cases where there are allegations of mental illness, rages and violence, inappropriate sexual behavior, destructive parenting practices, or any number of other problems, a child custody evaluation may be ordered. The evaluator is a specialist in unravelling the allegations and in finding facts. They are in the role of an investigator who will make an extensive report to give to both attorneys and the judge in the case.
WHILE YOU WILL PAY THE BILL, IT IS IMPORTANT TO REALIZE THAT THE EVALUATOR IS WORKING FOR THE COURT, NOT FOR YOU. THIS PERSON IS NOT YOUR FRIEND OR THERAPIST, RATHER HE OR SHE SEVES IN THE ROLE OF AN INVESTIGATOR.
These evaluators are likely to investigate every family member who is involved with a child and, in some cases, the parents’ friends who also interact with the child. They will review documents, declarations, and other kinds of evidence. They may call the children’s teachers or speak with the paediatrician. In some cases comprehensive personality tests will be done by another specialist.
The evaluator will compile a report of his or her findings including a series of recommendations to your attorney or directly to you if you are representing yourself. These recommendations are components of a parenting plan. All of this information will eventually be given to the judge. The judge will usually decide the child custody issues according to the recommendations of the evaluator. These recommendations will become the law in your family. It pays to be prepared for this process.
What prevails in court is not necessarily the truth, but rather the appearance of truth.
If you do not supply your attorney, the valuator and the judge with accurate information, you will not get optimal results. Trying to set straight faulty recommendations will be extremely difficult and very costly for you. In fact, these recommendations are nearly impossible to change.
The best way that you can prepare for a child custody evaluation is to complete a well though-out parenting plan yourself. Present your plan with all of your supplemental evidence to the evaluator early in the process. In doing so, you will have provided the evaluator with a baseline to work from. The truth is that no stranger to your family will know everything that you know, even after all the work required to write the final report is done. Only you know your history, plans and needs of your children in detail. Therefore, you are likely to influence the result of the report by organizing key information and presenting it to the evaluator early in the process.
Furthermore, you can strengthen your position in a custody evaluation by reading the latest parenting books and by enrolling in the best parent education class you can find. Most parent use methods passed down by previous generation, which may be sadly-out-of-date. We now know much more about how to parent children optimally. You can count on the fact the the evaluator is looking at how informed you are as a parent and the quality of your parenting skills. With a little effort, you don’t have to come up shorthanded.

Preparing for Help from Professionals
Many parents have found that the following degree of preparation is extremely useful in helping the evaluator understand what has happened in your family and your ideas about how what is in the best interests of your children. This evaluator doesn’t need to know everything, only what is relevant to making the decision about how you will raise your children.

Prepare a notebook of information for the professionals who are helping you. Include the following:
1. Title page, including today’s date.
2. Include a photograph or two of your child. Acquaint the evaluator with your child. Include comments about the child’s personality, talents, interests and special needs, such as:
a) How is your child adjusting to the changes in your family?
b) How can you help resolve post-separation issues? Have you explained to your child that they are not the cause of nor responsible for your separation from the other parent?
c) What is the best method for disciplining your child?
d) Is the child happy with the current arrangement? If not, how can the arrangement be improved?
e) Which people are most important in your child’s life?
f) State your concerns and feelings for your child.
3. Chronology or timeline of key events that happened in your relationship with the other parent and in your child’s life. (People can read six times faster than they can talk. It saves time and potential misunderstanding to have the history of the family briefly outline in this way.)
4. Your parenting plan.
5. Supplemental information that will support why you think you plan is appropriate.
6. Declarations.
7. Legal evidence, such as, relevant cards or letters, school reports, telephone bills, insurance records, physician or police reports. Photocopies may be a good idea.
8. Information sheets, flyers, notices.
9. Relevant correspondence, such as letters of recommendation.

“Let’s Raise Some Amazing Children” with “Breakthrough Parenting®”
Patricia Lessard
Certified Breakthrough Parenting Instructor
www.ThePlaceInTheGrove.com
604-881-1104

The first question to answer is "who is the biological father." If you are not in a stepparent role, or married to the mother, and you are not the biological father of the child, you have no rights or obligations with regards to the child.

This question can be answered relatively easily with DNA testing after the child is born.

Once the issue of paternity has been resolved, the issue of amount of child support payable has been made easier to answer by the Child Support Guidelines which have been in force since April 1997. See the Federal Government Link at the Links Tab of the Home page. They have a link to their information on the child support guidelines.

If you are the biological parent of the child, and you reside with the child less than 40% of the time, you must pay the parent with physical custody (the parent who resides with the child more than 40% of the time) the guideline amount of child support (other amounts apply in other situations such as step parent, split parenting and shared parenting).

Basic Amount: Look up Line 150 from your last tax return, look up that amount in the child support guideline table for the number of children in question, and you will have a starting point.

Special and Extraordinary Expenses: In additon to the basic child support table amount, you may have to pay your share of "special and extraordinary expenses." Daycare and other childcare expenses that allow a parent to work are almost always classified as "special" expenses to which you must also contribute.

Tip: Remember, you only have to contribute to the "net" expenses. For example, if the other parent receives subsidies and tax deductions for daycare so that she has no net expense, neither do you.

As a starting point, you have to support all children to whom you are legally a parent or stepparent. If you are separated from the parent who has the children in their physical care and custody you have to pay that parent "child support". The starting point for basic child support is found in the "Child Support Guideline Table" which you will find at

Step one: Look up your total annual income at line 150 of your last Canadian income tax return (you must file a return every year)

Step three: Look up the amount of basic child support you must pay in the Child Support Guideline table for your amount of total income for the number of children you have. That is your basic child support obligation.

You may also have to contribute your proportionate share of special and extraordinary expenses such as net daycare costs and other expenses.

In Canada, the amount and duration of spousal support varies widely but it is based on such factors as the length of the marriage, the needs of each party and the means of each party and whether anyone was prejudiced in some way by the marriage or the marriage breakdown. The classic situation where spousal support is payable is where one spouse compromised his or her career prospects and income earning capacity by staying at home to care for the children of the relationship.

The Goal. The goal of spousal support payments is to soften the impact of relationship breakdown on the standard of living of the spouse with the lower income and to limit the strain on societal safety nets by the lower earning spouse.

Spousal Support Advisory Guidelines. Several family law professors in Canada have developed an economic formula, the Spousal Support Advisory Guidelines (SSAG) to share family income so that both parties have roughly the same net disposible income to support their post-separation households.

How much? This redistribution of total family income is achieved by the higher income earning spouse sharing part of their income with the lower income earning spouse in order that each spouse will have about the same net income to support their new households after the separation.

How long do I pay/receive spousal support? The duration that spousal support can be payable is roughly half the duration of the marriage. So if the parties were married for 2 years, spousal support might be ordered to be paid for one year. Recent case law supports the view that judges will define the duration (in years or months) that spousal support is payable, rather than leave it open ended or indeterminate.

How are spousal support payments calculated? Unlike the calculation of child support, which is based on an easy to understand income table, spousal support calculation requires a complex computer analysis, taking into account many factors. Most family lawyers will have the computer program which calculates the range of spousal support payable by one spouse to another under the Spousal Support Advisory Guidelines. Unlike the amount of child support which is "written in stone", the amount and duration of spousal support is up to the discretion of the judge hearing the application for support. While technically there is flexiblity in the amount of spousal support, most judges will stick pretty closely to the range of spousal support amounts generated by the Spousal Support Advisory Guidelines.

Who is eligible for spousal support? In British Columbia, spousal support can be payable in common law relationships (couples living together in a spousal relationship for a period of not less than two years) and married relationships. It may be payable by same sex and opposite sex spouses as long as they meet the legal definition of spouse prior to the relationship breakdown.

What are my obligations as a spouse receiving spousal support? It is an important principle of Canadian law that both parties in a marriage breakdown are expected to become economically self-sufficient as quickly as possible. In practice, however, judges will not expect a spouse who has been out of the workforce for most of his or her lifetime, to become economically self-sufficient after the age of fifty. These spouses may receive spousal support as long as the other spouse is earning an income.

Time Limits for Requesting Spousal Support: Application for spousal support in a common law relationship cannot be made after a year has past since the spouses separated. It must be made in the year immediately after the separation.

Where the couples are divorced and there was no claim made for spousal support in the Statement of Claim for Divorce, the claim for spousal support must be made within two years after the divorce is granted, because after two years have passed since the divorce, the parties are no longer spouses.

By Not everyone thinks the new spousal support guidelines are perfect, but they do go a long way to eliminating wildly different decisions on awards.

Karen Kear-Jodoin has a standard blurb she tells divorce clients about their prospects for getting spousal support from the court. “On a good day, you may receive 40 per cent [of gross income] and on a bad day you may receive 15 per cent,” says the Montreal family lawyer. “It depends on the judge. There has to be a better way.”

For some lawyers and judges, that better way is the Spousal Support Advisory Guidelines, which this summer authors Carol Rogerson and Rollie Thompson finalized following the release of a draft report in 2005. In essence, the guidelines boil down spousal support decisions in typical cases to one of two formulas — one for couples with children and another for couples without kids — in order to determine a range for both amount and duration of an award. But while courts in New Brunswick, Ontario, and British Columbia have endorsed their use, in Quebec, the Court of Appeal has criticized them.

As a result, the guidelines rarely come up in court there, with many lawyers using them “en cachette,” or behind closed doors, says Kear-Jodoin. “I don’t hear about them in the courts,” says Kear-Jodoin, noting the July 2006 Quebec Court of Appeal ruling that reduced a spousal support award determined by the advisory guidelines has left lawyers afraid to raise them in front of judges.

Elsewhere, however, lawyers and judges are making regular use of the guidelines. In British Columbia, for example, family lawyer Kathleen Walker finds that while the courts have been applying them frequently since a 2005 appeal ruling in Yemchuk v. Yemchuk, the trend has increased even more since Rogerson and Thompson released their final version. “What I’m finding is that [judges] will not do anything but what’s set out in the spousal support guidelines,” says Walker. “They’re applying them much more rigorously than they were even six months ago.”

It’s not only in Quebec that the guidelines come under criticism, however. Walker, for example, says although she always carries a printout of the guidelines to court, she finds the awards under them are more generous than what she used to see. “I think they’re too high. I think if I had to come up with that kind of money every month, I don’t know how I would do it.”

Thompson, though, says although regional variations in spousal support awards mean some people will find the guideline results too high or too low, the benefit comes from less arguing in court since, in theory, they will make it easier for divorcing couples to settle and allow judges to render decisions faster.

“I think that you do hear from some people that they feel in some cases you could get a little bit more [support],” says the Dalhousie University law professor. “But you know what my answer to that is? In order to get to that little bit more, without guidelines it costs you a lot more money [to litigate]. You’re trading off legal fees against outcomes here.”

The guidelines project, which began as an initiative of the federal Department of Justice in 2001, aimed to bring consistency to an area of law that had become increasingly subject to judicial discretion following two landmark Supreme Court of Canada cases on spousal support.

“The leading decisions on spousal support law, which would be particularly Moge and Bracklow, were cases about entitlement and they painted very broad strokes,” says Thompson. “Bracklow, in particular, recognized a fairly broad basis for entitlement on a non-compensatory basis, as in not compensation for economic disadvantage but really need. As a result of that, a lot of issues got pushed from entitlement to quantum and duration, and people were having immense difficulty finding predictability and consistency. I think those difficulties between 1999 and 2000 [or so] were what fed an interest in advisory guidelines.”

Getting to a final version wasn’t always easy, however. For Thompson, the most straightforward area was developing a formula for couples with dependent children since the issues are fairly standard. “There’s a lot of homogeneity in cases with kids because kids demand care,” says Thompson. “That formula works quite well for a wide range of cases.”

In the end, the authors settled on a formula that awards the custodial parent between 40 and 46 per cent of the couple’s combined disposable income. But the question of how long that support should last was tricky. In marriages that were neither long or short, for example, questions of duration can be complicated by the fact that the children may be soon about to leave the home as they reach age 18.

As a result, the issue becomes how long the recipient should continue to receive support at that point since the courts must also consider when a spouse can be reasonably expected to be self-sufficient. In one part of the country, Thompson notes, a tendency for couples to marry early added to the challenge since recipients would often be in their late 30s or early 40s when their kids left the home. That meant they still had time left to start or build a career.

The final result was what the guidelines authors call a “soft” approach to duration for couples with dependent children. The guidelines do set potential time limits based on either the length of the marriage or the age of the children but, the authors emphasize, that range is meant to be a guideline for a review or a variation of a support order rather than a potential hard cap on payments.

When a judge ultimately rules that support should end depends on the particular characteristics of the marriage, such as the degree to which the recipient spouse has experienced an economic disadvantage due to the focus on raising the children.

Nevertheless, Toronto family lawyer Llana Nakonechny worries the use of a formula is still a barrier to acknowledging the particular sacrifices that one partner — usually the woman — often makes during a marriage. “I think this is always the problem with a formula . . . it can’t take into account some of the particular roles played during the marriage, the reason for somebody’s inability to get back into the workforce or choices that may have been made by the parties,” says Nakonechny, who sits on the legal committee for the Women’s Legal Education and Action Fund. “We know that women’s after-tax financial circumstances after marriage are so much less than men’s, and they always have been.”

For Nakonechny, the issue of guidelines is a catch-22. On the one hand, judges need discretion, but on the other, she says the guidelines have reduced the uncertainty that characterized spousal support rulings in Canada. “That’s what led to the want for the guidelines because people said, ‘This is all over the map. . . . We can’t advise our clients, we don’t know what to expect, we don’t know what the judge is going to do. So, could we just have something that would help to avoid this lengthy fighting and litigation about numbers?’”

Thompson, however, has a response to the concerns of people like Nakonechny. The guidelines, he notes, have a number of exceptions where the formulas don’t apply. A spouse who gives up a career in order to move elsewhere with a partner who has transferred jobs, for example, is one situation where a short time limit on support due to a relatively short marriage would make the formulas impractical. Another exception, meanwhile, recognizes the need for higher or longer payments to a spouse who has a disability. “There has been to a surprising degree a tendency not to look at the list of exceptions, so that what happens is people have focused on the formulas as being the guidelines. The result is they’ll use the formulas in a disability case, and they’ll [say], ‘Those numbers don’t make any sense. I’m not using those numbers.’ Well, there’s this big thing that says ‘exception — illness and disability,’” says Thompson.

Nevertheless, while observers like Nakonechny worry about what the guidelines mean for the status of women, people like Danny Guspie argue they have entrenched a bias in the courts against men. “I think for a man it means certain ruin,” says Guspie, a divorce-management consultant and executive director of Toronto-based Fathers’ Resources International.

Besides his concerns over the amount and duration of payments mostly men have to make, Guspie accuses Parliament of having shirked its responsibility by turning to outside experts to create the advisory guidelines in the first place. “It’s what a bunch of professors have said is now the law,” he says, calling the whole project “politics at its worst.”

Thompson, though, emphasizes the guidelines are merely an advisory tool that reflect the current jurisprudence on spousal support. He adds that if Parliament wants more stringent or specific rules, the government is free to change the Divorce Act. But for now, he says, the guidelines are useful. “To some extent, I think the success of the guidelines reflects their advisory nature, which is that people don’t feel hemmed in and bound by them. They use them most of the time because they work most of the time. When they don’t work, they’re not stuck with them.”

In the meantime, he expects they will evolve as judges and lawyers experiment with them. “What the advisory guidelines do is they take a whole range of typical cases and make them easier to resolve in a reasonable way. That’s what I think we’ve seen three years later, and now we have to move onto the next stage and say what do we do with some of those areas of the law that aren’t so clear.”

For her part, Edmonton family lawyer Marie Gordon says she’s just grateful the guidelines have reduced what she calls the “chaos” that used to characterize spousal support rulings. “Pre-guideline jurisprudence was no picnic,” she says. “It really was very discretionary [and] very judge-driven. So, on similar sets of facts, you might get very different outcomes.”

The Spousal Support Advisory Guidelines are available on Justice Canada’s web site at www.justice.gc.ca/eng/pi/pad-rpad/res/spag/toc-tdm.html

Couples living together in a spousal relationship (not as roommates, friends or siblings) are considered spouses after two years for the purpose of their obligation and rights to pay and receive spousal support or alimony. However, the legal concept of "division of family assets" only applies to couples who are legally married to each other.

Common law couples, and people in other kinds of relationships may however, make other claims against each other's assets.

In general, in BC, if you win at Court the losing party will have to pay you for some of your legal expenses of the hearing or of the case. This is to discourage people from taking unreasonable positions and going to Court with them. Only in rare circumstances however will the amount of costs that the loser is ordered to pay the winner approach the actual amount of legal costs of the winner. Typically the winner will receive about 1/4 to 1/3 of what they actually spent to win, from the loser. Collecting this money from the loser is a whole problem in itself.

Your wife is incorrect in her understanding of how family assets are assessed and divided (see below) You or divorce your lawyer can obtain an "Order restraining disposition of family assets" (if you are married) to prevent the sale of the Mercedes. This is one of those rare situations where the Court must grant your request. You can also ask for injunctions preventing the sale and preserving property.

If the parties cannot agree the date of trial is the valuation date unless the item has already been sold. In that case the date of sale is the valuation date.

However, you cannot start a fresh proceeding in a different Court which has the same jurisdiction to grant family law Orders as the Court that made the Orders you didn't like, so that you can get Orders you like better. If you could there would be two competing Court actions at two different Court levels.

Court systems at all levels try and show each other's proceedings, processes and Court Orders respect. If one Court system makes an Order in a case between two parties other Courts will decline to make a competing Orders or to vary that Order. This also avoids the obvious confusion of competing Orders on the same issues such as custody etc. in different Court systems and the added expense of trying to litigate in two different Court systems at the same time.

Exceptions: The only exception to this rule is the circumstance where the parties are married and therefore entitled to start a court proceeding under the Divorce Act. In that case either spouse may start a Divorce Act proceeding in Supreme Court claiming all the same relief sought in Provincial Court and literally start all over again even if orders have been made in Provincial Court.

For this reason, married couples should usually start their proceedings in Supreme Court to begin with because if either party doesn't like what the Provincial Court decides, they can start a Divorce Proceeding in Supreme Court and start the litigation all over again from scratch.

Even if one party starts a Divorce proceeding in Supreme Court, a Supreme Court judge has no jurisdiction to "vary" an existing Provincial Court Order. There must be a whole new Divorce Act proceeding started in Supreme Court in Order for there to be new Orders for custody, child support, spousal support, etc under the Divorce Act of Canada.

Confused? Just remember you can't "shop around" for a new Court Order in a different Court unless you are a married spouse starting a Divorce Act proceeding in Supreme Court, then you may start all over again from scratch and obtain new Orders for everything under the Divorce Act.

PLANNING: Without one, control over your affairs will fall into the hands of others

After 18 years as a financial planner, Susan Stefura of National Bank Financial is still amazed at public apathy toward estate planning.

— iSTOCKPHOTO.COM

If you have minor children, a will allows you to make guardian appointments. With no will, the courts make the decisions.

“I am continually shocked with the number of people who don’t have a will or an up-to-date will,” said Stefura, during a presentation for Altamira Financial Services.

“I met with a 70-year-old lady a month ago and she brought me in her will dated 1964 — the executors had died, the beneficiaries had died. I met with another guy, in Edmonton, in his 40s, he had a $12-million net worth, two young kids, and he did not have a will.

“A will, where you do have minor children, allows you to make guardian or alternate guardian appointments, so without a will the courts will decide who the most appropriate guardian is, and that may be someone you don’t want.

“Without a will you cannot make gifts to friends or charities. And without a will you cannot name your choice of executor, the person you want to manage things when you’re gone.”

A will should also be updated after any life changes, such as having children, a divorce, a remarriage, or any change in assets.

“Check your beneficiary designations,” said Stefura. “A lot of us opened our RRSPs or even life insurance years ago, before we were married or divorced, and some of those may have changed. If you say someone is your RRSP beneficiary and your will says someone else, they’ll choose whichever is the most recent designation.”

In most cases people will pay the most income tax in their year of death, because they are deemed to have disposed of all their worldly possessions, which could trigger capital gains.

“Typically not a lot happens at the first death, it’s at the second death where that second spouse hasn’t remarried that you’re going to see the tax bill really hit. At the second death your registered accounts are going to be taxed as income.”

Many people get into joint ownership of property with a child to avoid probate fees, which range in provinces from hundreds to tens of thousands of dollars.

But joint ownership can have some dire consequences. A parent may lose control over the property. In the case of a house or cottage, it could lead to capital-gains tax for a joint owner who already has a principal residence, and family squabbles could result if one child feels another was put in joint ownership only to avoid probate and not for beneficial ownership.

One option to leaving assets outright upon death is to set up a testamentary trust, which gives you control over how your assets will be used after your death, by whom and when.

“There’s a tax advantage, they’re a separate entity like you and I are, and each year you have to file a tax return for the trust, taxed at the graduated rates like you and I are. A living trust is taxed right away at that 39-per-cent maximum tax rate [in Alberta] from the first dollar.

“The other reason you want to set up a trust is to control the properties in the trust. You may have a spendthrift child, a drug-addict child, a child who cannot manage his money on his own, a child who is having marital problems — those are all reasons you would want to have a little control around the money.

“You can stagger distributions of capital to your kids — most people don’t want to leave a million bucks to an 18-year-old, so you might give them a little bit at 30 and at 40, and at 50 you can give them the rest.

“You can tie the distribution to an achievement, like graduating from university. Property within a trust is protected from creditors, like an ex-spouse.”

The depressed housing market in the U.S. is luring many people to buy vacation or rental property there, but you should investigate the implications of U.S. estate tax first.

“This tax is calculated on the fair market value of the asset at the time of death, while in Canada we tax the gain, not the fair market value.

“You will have to pay U.S. estate tax if the value of everything you own worldwide reaches $2 million U.S. in 2008, and if the value of your U.S. property is $60,000 or more.

“If your foreign property is worth $250,000 or less, your tax bill starts at almost $71,000, although you may have some tax relief that applies

WHY THE RUSH TO CONSULT WITH A BC LAWYER

HOW DO I PAY A BC LAWYER

GETTING MARRIED?

RELATIONSHIP BREAKDOWN

DANGEROUS SITUATIONS

RELATIONSHIP AGREEMENTS AND CONTRACTS

DIVORCE HOW TO'S

CHILD CUSTODY ISSUES

HOW DO I PREPARE FOR A CUSTODY INVESTIGATION?

CHILD SUPPORT

ALIMONY, SPOUSAL SUPPORT FOR A HUSBAND OR WIFE

LIVING TOGETHER

SAME SEX COUPLES

WHO PAYS LEGAL COSTS

DIVIDING ASSETS

I LOST IN COURT. WHAT NEXT?

HOW DO I PROTECT MY KIDS AFTER I DIE?

PLANNING: Without one, control over your affairs will fall into the hands of others