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  • Breaking Up

    One of our episodes next season will be on the topic of “Breaking Up” and will address the law that governs what happens after the end of a marriage or common law relationship. The following is an overview of the topic.

     

    When a marriage or a common law relationship is ending, both parties carry certain legal rights and obligations that assist in governing the family law issues that can arise in these cases. Particular rules and guidelines established in provincial and federal legislation try to enforce fair and equitable solutions to difficult issues that may arise out of such cases, such as determining child custody or spousal support.

    It is important to note that the law in this area can be complex, particularly regarding the division of family assets, and it is generally difficult to proceed without seeking legal advice even if attempting to reach an agreement outside of a trial.

    In British Columbia, the law governing divorce, separation, and the dissolution of common law relationships is comprised of two statutes: the provincial Family Relations Act and the federal Divorce Act. Typically, the issues that might arise in the case of divorce or the ending of a common law relationship are the division of family property, spousal support, child support and child custody. These issues are governed by the two statutes noted above.

    Though Canadian law considers common law relationships and marriages differently, when the relationship ends common law partners carry many of the same rights and obligations that married people do when facing a divorce with some note-worthy exceptions.

    An important area where common law relationships differ from marriages is in the division of family assets after the end of the partnership.

    The Division of Family Assets

    The division of family assets after a divorce is governed by the Family Relations Act. A family asset is defined as property “ordinarily used for a family purpose”, which focuses on how the property was used as opposed to the original purchaser or owner. Typical family assets are things like the family home and family car.

    As a general rule, the law dictates an equal, 50/50 division of family assets. Though exceptions may exist in extenuating circumstances, there is a strong presumption for equal division. Pre-nuptial agreements or consent orders can stipulate an unequal division of assets in the case of a divorce, though the courts can find even these to be unfair if circumstances significantly change.

    Property rights are different for those in common law relationships, and if the relationship ends, there is no automatic right to an equal division of property unless a cohabitation agreement was previously signed. Instead, partners typically each take the assets in their own names, sharing equal interest only in assets owned together. If one partner contributed to the purchase of another’s asset, they may claim for an interest of it but they will have to prove that this contribution did not constitute a gift. If dividing property in this fashion will result in a greatly unfair result, the partner who was treated unfairly can attempt to make a claim for an unjust enrichment but the process is difficult and expensive.

    Spousal Support, Child Support and Child Custody

    Under the Family Relations Act, both married and common-law couples can apply for spousal support in the case of a divorce. Spousal support is money paid by one partner to assist the other partner to meet their financial needs after the relationship ends. In order to apply for spousal support, common law partners must have been living together as a couple for at least two years and apply for the support within one year after separation. There is no similar time limit on married couples to file for spousal support.

    Child support is payable by anyone who is a biological or adoptive parent, regardless of their relationship with the other parent. Child support is money paid by one parent to the other for the financial well-being of the child. Typically, the parent who has the child in their care less will pay child support to the parent who has the child more of the time.

    The law governing child custody is again the same for both married and common-law couples. In deciding custody, the court always seeks to act in the best interests of the child. Different forms of custody arrangements include shared custody, sole custody, and split custody. Custody includes a consideration of both living arrangements for the child as well as how to decide which parent may make major decisions regarding the child.

    Legal Approaches to Addressing these Issues

    There are typically three legal approaches to addressing these issues. First, both partners can sign a separation agreement, which will dictate the terms of the separation in regards to the above issues and is legally binding if filed with the court. Secondly, partners can pursue non-court dispute resolution alternatives such as mediation or negotiation to come to an agreement. These can take place with or without lawyers. Lastly, and most infrequently, partners can take each other to court to have a judge rule in the case of a contested divorce. This is generally a time-consuming, expensive option and can put additional stress on the parties involved.


    Shari Willis is a J.D. Candidate at the University of Victoria Law School. She completed her B.A. at Simon Fraser University in 2010 with a major in Women's, Gender, and Sexuality Studies and an extended minor in English. Shari formerly worked as a support worker and was active in campaigns and initiatives dedicated to ending violence against women. 

    The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice. 

     

    Tags: episodes, Breaking Up, separation, divorce

    Nov 22 2012 12:12 AM
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  • Spousal Support

                    Next season Family Matters will be dedicating an episode to spousal support. Spousal support is one of the most contested issues in separation and divorce proceedings in Canada. While each province has its own legislation to deal with common law spouses and married couples that separate but do not divorce, the dominating piece of legislation is the federal Divorce Act. The following includes some of my reflections when exploring the topic of spousal support.

                    After doing some background research on spousal support, I was surprised at how many goals and purposes are behind spousal support decisions. I was also surprised that some of these goals and purposes conflict with each other. The unfortunate result is that all courts have to perform a balancing act between these purposes and it often results in less than clear decisions. Considering that divorce isn’t the most cooperative process (to say the least), it is easy to see how this unpredictability can encourage costly court battles. To demonstrate this point, I will try to briefly describe three of the many purposes of spousal support.

                    One purpose is to compensate a former spouse for any investments they lost from the divorce. The typical scenario is when someone sacrificed a career to care for children. That sacrifice saved child-caring costs and allowed the other spouse to build a career with a stronger income, but prevented the stay-at-home parent from increasing their earning potential. When divorce strikes, that stay-at-home parent bears a bigger loss than the other spouse, so courts recognize they should balance that financial impact between the parties.

                    Another purpose is to ensure the financial needs of both spouses are taken care of.  If one party no longer has the means to provide for themselves, then the other party should continue to provide for them. On the other hand, spousal support shouldn’t be granted unless the other party is actually able to pay it. Both parties needs have to be addressed before a reasonable conclusion can be made.

                    The big competing purpose (against the disadvantaged spouse) is that spousal support decisions need to encourage self-sufficiency of a disadvantaged spouse. If there wasn’t a push, some ex-spouses may never try to provide for themselves. They may try to just live off the other for as long as possible. Since that would hardly seem fair to a payer, courts recognize they have to try and prevent freeloading.

                    These are just three of many different purposes considered in spousal support decisions and already it is easy to see a balancing act. Real cases are much more complex so it is usually much less clear cut as to what the courts will decide. Unfortunately, this gives hope to both spouses that they may win a court battle, so it encourages fights instead of settlements.

                    Court battles cost large amounts of time and money. Often the amount a spouse can gain by a favourable judgement is not as much as the costs of litigation. Instead of sitting down and coming to a fair agreement themselves, many divorcees find a big chunk of their money go towards lawyers and legal fees to fight in court. That being said, court battles are often based on bitterness instead of any financial incentive, so financial sense may not prevent many cases from going to court.

                    In an attempt to address these issues, the Department of Justice of Canada supported the creation of Spousal Support Advisory Guidelines. These Guidelines are not law. Instead they are just a formula to assist in determining a fair number for support, and don’t address whether a spouse is entitled to spousal support. They have been a tool to help maintain a focus on the issues and to help parties resolve the issue before it goes to court. Judges also refer to them when they make decisions. Real cases are much more complex than can be captured in a formula, but the Guidelines can be regarded as a useful starting point.

                    Complex issues in inherently confrontational areas of law, such as divorce proceedings, will never have a simple solution. A broad general framework with many purposes and principles is required in order to be flexible enough to deal with the complexity of divorce cases. Unfortunately, a broad framework also usually brings uncertainty and litigation. Hopefully we are moving towards a legal system that can better manage these costs.

     

    Tyler Holte is a J.D. Candidate at the University of Victoria Law School. He completed his B.Com at University of Alberta in 2012 with a major in Business Economics and Law with a minor in Accounting. Tyler is currently the First Year Representative of the Intellectual Property, Information, and Technology Law Club at University of Victoria. He formerly taught probability and statistics lab at MacEwan Univsersity.

    The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice. 

    Tags: episodes, SPOUSAL SUPPORT, harvey brownstone, separation, divorce, season 2

    Nov 19 2012 4:19 PM
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  • Family Court 101

    Next season, one of our episodes will be on the theme of "Family Court 101" and will discuss the basics of Family Court and its court processes. The following is an introduction to the topic. 

    What is Family Court?

    For many Canadians, the court system can seem complex and inaccessible. For those who are also dealing with the emotional strain accompanying family legal issues, the task of navigating Family Court can seem particularly daunting. 

    A look at the larger court structure can help break down what Family Court is and how it works. In Canada, there are two courts which deal with family legal issues: provincial courts (“Family Court”) and Supreme Courts. Family Courts are simply branches of the provincial courts that deal with certain family law issues. It is important to note that while there is some overlap in what issues the two different courts can address, there are also jurisdictional requirements that state that certain issues are to be addressed in a particular court. When considering what court can address a particular family law issue, it is important to keep these differences in mind.

    Family Court Jurisdiction: What Issues Can be Addressed in Family Court?

    Family Court can address issues related to:

    • child custody and guardianship,
    • access to children,
    • parental, spousal, and child support,
    • child protection orders and
    • personal protection orders.

    Family Court cannot deal with cases involving:

    • divorce,
    • adoptions, or
    •  the division of family property.

    The last three must be addressed in Supreme Court as they fall under the purview of federal laws. In B.C., Family Court’s jurisdiction is governed by the Family Relations Act, the Family Maintenance Enforcement Act, the Child, Family and Community Service Act, and the Adult Guardianship Act. If you wish to obtain a divorce, have assets divided or make an adoption order you cannot address these in Family Court.

    The Application Process

    The application process for Family Court varies depending on what the particular family law issue is. Some carry certain pre-court requirements that applicants attend programming such as Parenting After Separation courses or meet with a Family Justice Counsellor to explore alternative dispute resolution options. The family law clerk at any provincial courthouse can help applicants understand the requirements for their particular issue and what steps they will need to take to apply to the court.  If the situation is such that one of the parties or the parties’ children are in danger, such as in domestic violence and abuse cases, personal protection orders may be obtained to protect individuals during the legal process.

    Basics of the Family Court Process

    There are two ways in which Family Court may resolve legal disputes. First, a settlement of the parties’ dispute through negotiation or mediation may resolve the dispute before it goes to court. Negotiation is a bargaining process where parties attempt to reach an agreement regarding the dispute with or without lawyers. In mediation, a trained and neutral third-party meets with the parties and tries to help them reach a settlement. If negotiation or mediation processes are successful, the settlement can be put into writing and will confer legal obligations upon the parties. This is called a consent order.

    In some cases, judges may require that the parties attend a pre-trial “Family Case Conference” over which the judge will preside. These conferences are private, informal meetings where the judge can ascertain what issues are disputed, mediate these disputes, try to assist the parties to reach an agreement and determine what other alternatives to a trial might be feasible. If an agreement can be reached, the judge can make a consent order during the conference.

    If alternative dispute resolution methods fail or are not feasible, the parties will go to trial before a Family Court judge who will weigh the evidence and both parties’ arguments to make an ultimate order regarding the dispute. Witnesses may be called by both sides to support their arguments, but in some cases the only witnesses are the parties to the dispute themselves. Parties may self-represent in Family Court and do not require lawyers.

    After trial, final decisions in Family Court may be appealed to the Supreme Court. Decisions from the Supreme Court can likewise be appealed to the Court of Appeal. This is an expensive process which may outweigh the benefits from a positive ruling.

    Accessibility and Self-Representation in Family Court

    Certain structural aspects of Family Court make it more accessible to lay litigants. The court rules are written in plain language that is easy to understand, making it much easier to self-represent in Family Court than in Supreme Court or a Court of Appeal. The court forms are also written in plain language, allowing applicants without legal training or counsel to fill them out themselves. Family Court also does not charge litigants court fees, making it considerably less expensive than pursuing a claim in Supreme Court or the Court of Appeal. Generally speaking, Supreme Court and the Court of Appeal have much more formal and structured court processes than Family Court. They carry more complex rules governing court processes and adhere to them more strictly.

    Family Court Today

    The number of cases initiated in Family Court has been on the rise since 1995, and the Court’s emphasis has shifted to alternative dispute resolution and informational programming in an attempt to alleviate some of the resultant pressure. Today, efforts are generally made to resolve the family law dispute before it goes to trial before a judge. Despite this, the number of Family Court cases remains on an upward trend and the consequent overburdening of the court system has led to criticisms that taking claims to Family Court is an arduous and slow process.  

     

    Shari Willis is a J.D. Candidate at the University of Victoria Law School. She completed her B.A. at Simon Fraser University in 2010 with a major in Women's, Gender, and Sexuality Studies and an extended minor in English. Shari formerly worked as a support worker and was active in campaigns and initiatives dedicated to ending violence against women. 

    The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice. 

    Category: Episodes

    Tags: episodes, harvey brownstone, separation, divorce, season 2, FAMILY COURT 101

    Nov 1 2012 8:15 PM
    2 Comments
  • An interview with Judge Harvey Brownstone: Advice for Family Lawyers

    Josh D. Simon
    Family Lawyer Magazine Contributing Writer

    Family Lawyer Magazine spoke with Judge Harvey Brownstone, who has been sitting on the family law bench for over a decade, and asked him to share some advice for family lawyers on how they can be more successful and better serve their clients. Judge Brownstone shared six outstanding tips with us. 

    1: Know and respect your client’s emotional stage.

    It’s rare that divorcing spouses are at the same emotional stage. It’s far more common – in fact, it’s the norm with very few exceptions – for one spouse to have emotionally disengaged from the marriage months, or even years before formal divorce proceedings begin.

    And while it’s an overstatement to say that even the most emotionally prepared spouse is 100% ready for what the real divorce experience holds in store – with all of its uncertainties, stresses, procedures, complex children’s issues and of course, costs – it’s true that the spouse who initiates the divorce is almost always in much better shape to make key divorce decisions: what to do with the house, how to tie up the loose ends, and so on.

    Family lawyers therefore do their client – and themselves, for that matter – an immense service by paying close attention to their client’s emotional stage. Are they emotionally disengaged, and therefore capable of seeing their divorce as a business transaction? Or are they reeling from having the “divorce bomb” dropped on them from above, and can’t separate the emotional issues from the practical ones?

    If it’s the latter – and it’s not difficult for a perceptive, attentive family lawyer to quickly evaluate this – then my advice is clear: family lawyers should get their client into heavy duty counseling at the earliest possible opportunity.

    Why? Obviously because their client is suffering deeply and perhaps even emotionally shattered, and attending to that serious problem ASAP is why professional counseling exists in the first place. But in addition to that, in the context of the divorce, family lawyers need to equip and empower their clients to separate the emotional issues from the business ones, so they can make wise, long-term decisions now — and not later, after the divorce is finalized, and when it’s too late.

    I won’t suggest that counseling during divorce can totally heal clients – for most spouses divorce is traumatic, and it can take years for the healing to completely finish (if ever). But with that being said, counseling helps clients get to a point where they can make objective, well-considered decisions regarding their divorce. And frankly, that’s what clients want, that’s what their children want, that’s what judges want, that’s what family lawyers should want, too.

    READ MORE

    Category: In the News

    Tags: advice for family law lawyers, harvey brownstone, family-matters, family lawyer magazine

    By Nancy - February 27, 2012
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  • Literacy in the Courts

    Frozen moment of judicial compassion

    By Valerie Mutton

    November 11 2011 issue Lawyers Weekly

    Justice Harvey Brownstone presides at a suburban Toronto building in which 6,000 family court cases are open at any given moment. It is the busiest such setting in the country. But when he senses someone appearing before him has difficulty reading, he doesn’t mind taking a moment, slowing things down and carefully guiding the proceedings to make certain everyone grasps what’s going on. In a venue with no shortage of painful vignettes, these moments form poignant contrasts...

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    Category: In the News

    Tags: Lawyers weekly, literacy, brownstone

    By admin - November 8, 2011
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  • Friends After Divorce - Possible? Recommended? - by Karen Stewart

    Most will agree that being friends after a relationship is difficult as the question of ulterior motive and resentment can hover in the clouds.  If friendship is in the cards it requires clear boundaries, a very understanding new partner and an ability of both parties to take responsibility and be accountable to the outcome of their relationship. The truth is that if two people who once were lovers can be friends there can be a comfortable and enduring trust that can serve to help  lay the foundation for new relationships and the future.  There is really  not that much difference if the relationship was one of cohabitation, marriage or simply a long term partnership when it comes to the matters of the heart.

    Continued...

    Category: Episodes

    Oct 31 2011 6:42 PM
    1 Comment
  • Why Families Matter - by Deborah Moskovitch

    "Trailblazer” isn’t a term often associated with divorce professionals. With the divorce rate hovering around 50 per cent, and over a million children annually experiencing their parent’s divorce, it is critical that couples understand the impact of divorce on families, children, the individual and society.

    What I find most astounding is that the divorce rate rises with subsequent marriages (http://www.more.ca/relationships/single-life/divorce-myths-debunked/a/30888) – this only demonstrates that people are not learning from their mistakes, and/or not taking the time to understand their own needs and expectations. Divorce education is imperative. It’s easy to see why divorce has spawned a lucrative industry. Continued...

    Category: Episodes

    Tags: brownstone, deborah-moskovitch, family-matterst, smart-divorce

    Oct 4 2011 11:52 PM
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  • How to be Smart About Divorce with Deborah Moskovitch

    I am both proud an honoured to be a guest on Family Matters with Justice Brownstone. This is by far one of my most informative and personal interviews; Justice Brownstone digs deep as I share my research and lessons learned so that anyone can have The Smart Divorce. He also delves into my own divorce journey, so that viewers are empowered with information and knowledge. Tune in tonight, October 4, at 10:30pm on CHCH TV.

    If you are interested in learning more about The Smart Divorce Resource ToolKit ,which Justice Brownstone speaks so highly of, please email info@thesmartdivorce.com for more information.

    Category: Episodes

    Tags: divorce, smart, tool-kit

    Oct 4 2011 11:41 PM
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  • Best-selling book on issues facing family court system leads to online talk show



    By the Honourable Justice Harvey P. Brownstone

    We are all aware that the single most important area of law that touches more people's lives than any other is family law. This is because family breakdown has reached epidemic proportions in North America, due in part to the facility and speed with which the multiplicity of social networking websites on the internet have enabled people to embark upon and terminate relationships. In recent years, family courts across the continent have become clogged with an avalanche of unsuccessful short-term relationships – relationships that were just long enough to produce a child. There is every reason to assume that this trend will continue as more and more people choose to engage in intimate relationships with partners they barely know.

    Despite the widespread incidence of relationship breakdown, most people I encounter in my courtroom are remarkably ignorant of even the most basic principles of family law. The fact that in most major centers in Canada, up to 70% of all family court litigants are self-represented, only makes the problem worse. And the fact that a great number of family court cases involve vulnerable children caught in the middle of high conflict parental disputes, makes the situation urgent for the parents and children involved...

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    Category: In the News

    Tags: article, brownstone, cba, tug-of-war

    By Family Matters - September 30, 2011
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