Early Resolution of Family Law Disputes
It is financially and emotionally beneficial for parties in a family law dispute to make every effort to resolve the issues between them through negotiation before bringing their issues to court, as the court process is very costly, time consuming and polarizing. Some issues to consider:
Family Law AgreementsFamily Law Agreements serve an excellent function in that they can reduce uncertainty for married or unmarried couples with respect to division of assets and debt, household management and support.
The Family Law Act provides that an agreement made pre-separation cannot determine parental responsibilities and parenting time.
A Prenuptial Agreement can address any number of subjects including, but not limited to:
Section 93 (3) and (5) of the Family Law Act set out the test for setting aside such agreements should they fail to contain certain information or should the parties be unduly influenced:
(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) the intention of the spouses, in making the agreement, to achieve certainty;
(c) the degree to which the spouses relied on the terms of the agreement.
Marriage Agreements are formed during marriage, normally shortly after marriage, and they function like a Prenuptial Agreement, as set out above.
Cohabitation Agreements between two people are often formed before or shortly after they begin living together and are generally intended to clearly delineate each party’s rights and obligations towards one another while living together, including if they marry, and if the relationship ends. A Cohabitation Agreement functions much like a Prenuptial or Marriage Agreement.
Separation Agreements are an excellent mechanism for settling disputes respecting property, debt, children, child support, spousal support, pensions, and any other issues arising from the breakdown of a relationship.
Separation Agreements document a resolution between two parties with respect to various issues arising as a result of a relationship breakdown, whereas Cohabitation or Marriage Agreements seek to anticipate and address such issues pre-separation.
When a couple separates, they can all settle matters outside of court by way of an adequately drafted Separation Agreement. Agreement can be reached through negotiation or mediation, or through another process like arbitration or a defined collaborative settlement process.
Just as in court, in negotiating a Separation Agreement, neither party will necessarily get everything they wished for but, unlike court, they will have better control over the outcome of the process and more certainty with respect to the terms of the Agreement which will only be binding if they are agreed to by each party.
A key feature of Separation Agreements is that they can be reached at any time post-separation, even after a court action has started. However, if a court action has begun, the terms of settlement may also be in the form of Consent Order which is prepared when the parties consent to a judge making an order which includes terms upon which they have already reached agreement.
For Separation Agreements to be reached and followed, a certain degree of respect and trust must exist or be cultivated between the parties in order for them to come to a mutual settlement of their issues. However, while ideal, it is not necessary for all of the issues to be resolved, although the overall goal is to settle as many issues as possible. If necessary, the remaining issues can be litigated. It will generally be less costly and less time-consuming than litigating all of the issues.
Child Support & Spousal Support
Child support is a payment made by one parent, the “payor”, to the other parent or guardian, the “recipient”, to pay for expenses to the recipient, after the parents separate, for maintaining the child's living conditions throughout the child’s upbringing. It is paid for the benefit of the child, not the parent.
The amount of child support will generally be stipulated by the rules set out in the Federal Child Support Guidelines (the “Guidelines”) which contain tables setting out the amount payable based on each payor's income and the number of children for whom support is being paid.
The child support tables only provide a starting point, as it will usually also have to be determined whether there are any “special or extraordinary expenses” for the children in accordance with section 7 of the Guidelines. Section 7 expenses generally include things like:
A court order for child support can be made under the provincial Family Law Act, or the federal Divorce Act. The order can be made under the Divorce Act if the parents are or were legally married and the spouse making the application has lived in the province where the application is made for at least one year.
Applications under the Divorce Act can only be heard by the Supreme Court, not the Provincial Court, and every couple going through the divorce process is required to prove that reasonable arrangements are in place with respect to the financial support of the children before a divorce will be granted.
A child must fall within the legislation’s definition of a "child of the marriage" under the Divorce Act (the “Act”) in order to be eligible for support. The following definitions in s. 2(1) of the Act apply to determine whether a child is a child of the marriage:
"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;
"child of the marriage" means a child of two spouses or former spouses who, at the material time
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
As well, s. 2(2) of the Act says that:
For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.
Child support can also be settled by a Separation Agreement, instead of applying to court if the parties can agree on the terms.
A person has a legal obligation to pay child support simply by virtue of being a biological parent, even if the payor never lived with the child and has no role in his or her life.
Stepparents and people who are guardians and not parents (as defined by the Family Law Act, set out below) can also be liable to pay child support.
Section 147 of the Family Law Act says that each parent and guardian of a child is responsible for the support of that child, and section 146 defines child, parent and guardian as follows:
a. who is not a parent, and
b. whose only parental responsibility is respecting the child's legal and financial interests
Section 146 gives a definition of stepparent for the definition of parent and says that:
Section 147 limits support for minor children, and sets out when stepparents are and aren't responsible to pay child support:
(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child
(a) is a spouse, or
(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.
(4) A child's stepparent does not have a duty to provide support for the child unless
(a) the stepparent contributed to the support of the child for at least one year, and
(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.
In shared custody situations, where each parent has parenting time at least 40% of the time, the amount of support payable by each parent will be determined first by looking at the table amounts set out in the Guidelines as if each parent were paying the full amount of child support. Then, the smaller amount of the lower income parent will be subtracted from the larger amount of the larger income parent, and the difference is the set off amount payable by higher income earner to the other parent. However, the Court will also take into account any increased costs resulting from shared custody, such as increased travelling costs, in addition to any other factors it considers relevant in weighing the support amounts for shared custody. Sections 8 & 9 of the Guidelines state:
8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
When health benefits are available to one parent through work, the court may order that parent to provide coverage for the child or children.
Spousal support is a payment one spouse, the “payor”, makes to the “recipient”, to provide financial support for living expenses and/or to compensate the recipient for choices that were made by the couple during their relationship that were not economically advantageous to the recipient upon the dissolution of the relationship.
Sections 161 and 162 of the Family Law Act set out the following factors to consider with respect to determining spousal support:
Objectives of spousal support
161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
Determining spousal support
162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.
Anyone who was in a married or unmarried spousal relationship can apply for spousal support within two years of their separation; however, no one is automatically entitled to receive support by virtue of having been a person’s spouse. Entitlement to spousal support depends on the particular circumstances of each couple. For example, depending on the age of a recipient spouse, he/she may be unable to return to the labour market and obtain some degree of self-sufficiency if he/she has very little training or education and there was an agreement over the course of the relationship that he/she would stay at home to manage the children and the home.
For couples who were legally married, a claim for spousal support under the Divorce Act can be brought before or after an order of divorce. However, a former spouse may be less likely to succeed on their application, the longer the delay.
Couples who were never legally married, have two years from the date of separation to apply for spousal support, under the Family Law Act. There are very limited circumstances where the limitation period can be extended.
The Spousal Support Advisory Guidelines look primarily to the incomes of the parties and rely on a mathematical formula to determine the portion of spousal incomes to be shared. There are many ways of sharing income, and it will depend on the formula that is adopted, if any.
Property & Debt
The division of property and debt can be provided for in a Cohabitation Agreement, a Prenuptial Agreement, a Marriage Agreement, or a Separation Agreement. If an agreement cannot be reached after separation, a party can apply to the Supreme Court under the provincial Family Law Act for an order dividing property and debt. The federal Divorce Act does not provide for the division of property or debt.
Excluded property is property that will not be divided between the spouses after separation. However, section 96 of the Family Law Act does provide for the division of excluded property in limited circumstances. Section 96 reads as follows:
Division of excluded property
96 The Supreme Court must not order a division of excluded property unless
(a) family property or family debt located outside British Columbia cannot practically be divided, or
(b) it would be significantly unfair not to divide excluded property on consideration of
(i) the duration of the relationship between the spouses, and
(ii) a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of excluded property.
Types of property excluded from being shared between spouses (“excluded property”):
It is the responsibility of the person claiming excluded property to provide the necessary evidence to prove that such property is excluded property.
All family dispute resolution professionals, including lawyers, mediators, arbitrators, family justice counselors, and parenting coordinators, are required by the Family Law Act to assess whether family violence is present in relation to a family law matter.
The Act defines family violence as:
(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,
(b) sexual abuse of a family member,
(c) attempts to physically or sexually abuse a family member,
(d) psychological or emotional abuse of a family member, including
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,
(iii) stalking or following of the family member, and
(iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence
The risk of harm to the family member(s) and the ability of the parties to negotiate a fair agreement must be evaluated when family violence has been present in a relationship.
Under section 183 of the Act, a party may apply for the court to make an order against a family member for the protection of another family member if the court determines that a) family violence is likely to occur, and that b) the other family member is an at-risk family member. Such order is called a “protection order”.
Certain remedies and protection orders are also available in criminal law and it is not unusual for family and criminal matters to run concurrently. A Notice of Family Claim may also include a claim for damages resulting from violence, in addition to claiming a protection order.
The safety and well-being of all family members should take precedence over all other family law issues.
Community resources available to support individuals coping with family violence, include but are not limited to:
We work for YOU! Call Martin & Martin Lawyers TODAY for a BETTER TOMORROW!