3 Unknown
Those who have married for immigration reasons do not typically qualify for an annulment. One would only qualify for annulment in this situation if they met one of the normal grounds for annulment as well.
DIVORCE: Since legislation made divorce readily available through the courts, it has become the most common method for ending a marriage. Pursuant to the Divorce Act, the married couple apply to the Supreme Court of British Columbia for a declaration that they are divorced from each other. The couple must meet the requirements for obtaining a divorce, but once they do, they will receive the necessary court order.
The actual divorce is the declaration that the two individuals are no longer married. However, under a divorce proceeding, the individuals will usually seek to have all related legal matters dealt Family Law—Chapter 3
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with at the same time. These related or corollary matters include issues relating to children, spousal obligations to each other, and division of assets.
Right to Remarry
There is no actual requirement that a married couple end their married status when their relationship ends. The individuals involved could just settle their obligations to each other and go their separate ways. There are some areas of law where having “married” status could technically give one of the individuals rights that the other individual no longer wants them to have, such as a spouse’s entitlement to a deceased spouse’s estate, so ending their status as married is advisable. However, the choice is up to the individuals involved. The only time a married couple MUST divorce is if either of the individuals want to remarry.
LEGAL MATTERS THAT MUST BE DEALT WITH
When parties cease to cohabit as spouses, they are considered to be separated. Because of religious or other reasons, spouses do not always apply for divorce after separation. However, spouses always must deal with the issues of division of property, spousal and child support, and parenting arrangements for the children.
Spousal Support
Married couples have a duty to ensure that their spouses have an adequate means of support when the marriage ends. Historically, married women, who did not work and could not own property in their names, suffered financially if the marriage ended. The concept of spousal support first developed as a means to address this inequity. However, since our laws cannot discriminate on the basis of gender, the modern application of spousal support applies regardless of gender.
Whichever spouse would suffer most financially on the relationship ending would most likely be the recipient of support.
• A married spouse must apply for spousal support within two years of the date of the divorce or the annulment of their marriage under either the Divorce Act or Family Law Act.
The rules for spousal support are the same in the Divorce Act and the Family Law Act.
• An unmarried spouse who has been in a common-law relationship for at least two years or who has been in a marriage-like relationship for less than two years but has had a child with the other party can apply for spousal support within two years of the date of separation under the Family Law Act.
Entitlement to support is neither guaranteed nor for life. The purpose of spousal support is to help cover the day-to-day expenses of recipient spouses while they work towards becoming financially self-sufficient.
Entitlement and length of entitlement depends on factors such as how long the couple was married and the difference in income. Also, sometimes during the course of the marriage, one spouse may have disadvantaged themself economically for the sake of the family. For example, a spouse may give up their career or education to help raise a family. A spouse who gave up opportunities to enhance their own earning potential may be entitled to support in order to reestablish themselves.
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Conversely, one spouse may have increased their earning potential with the assistance of their spouse. For example, Pat may work and support John as he earns a degree. John would now have better employment opportunities than Pat.
Finally, the individual’s earning potential after the relationship ends must be considered.
Sometimes, one of the spouses is disadvantaged. The spouse might be ill and unable to work.
Or if there are young children, one spouse may be unable to work because they are the children’s caregiver.
The court’s decision about the amount of spousal support is generally “no fault” that means it is not related to the conduct of the parties involved. For example, a spouse who commits adultery would not be penalized financially for their behavior.
However, there are two kinds of behavior that could be taken into account by the court in its decision about spousal support.
Section 166 of the Family Law Act says:
In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably (a) causes, prolongs or aggravates the need for spousal support, or (b) affects the ability to provide spousal support.
Example 1
Mary is applying for spousal support in her Notice of Family Claim asking for a divorce from John.
When considering Mary’s claim for support, the court will take into account that there is a significant family debt, because during the marriage John was gambling and bills were left unpaid.
Mary’s share of the family debt will prolong her need for spousal support.
Example 2
Sally is applying for spousal support in her Response to Peter’s Notice of Family Claim asking for a divorce. When considering Sally’s claim for support, the court will take into account that Peter’s earning potential has been affected by Sally’s alcoholism. Peter has lost several very good jobs when Sally has made drunken scenes in his workplace. Because he has had to start over several times, he is struggling to pay off debt incurred while he was unemployed.
To assist in determining spousal support, the federal Department of Justice has released the Spousal Support Advisory Guidelines.
The amount of the spousal support and the length of entitlement depend on the length of time the spouses lived together, the functions performed by each spouse during the time they lived together, and an agreement between the spouses relating to spousal support.
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Separating or divorcing spouses need to divide up their property. Individuals come into a marriage or marriage-like relationship with their own assets and money. During the course of their marriage or relationship, they also acquire new assets. When the marriage or relationship ends some of these assets and money must be divided.
The Family Law Act, in regards to the division of property, applies both to married spouses and spouses who have been in an unmarried relationship for at least two years. In general, the Act allows spouses to keep the property they bring into a relationship, sharing only the increase in value of that property during the time they are together. Property spouses acquire after starting to cohabit is divided.
For the purposes of considering the division of property, the Family Law Act places property in two categories: excluded property and family property. Excluded property usually remains in the possession of the owner; family property is usually divided.
The following excerpt from the Family Law Act defines excluded property: s. 85 (1) The following is excluded from family property: (a) property acquired by a spouse before the relationship between the spouses began;
(b) gifts or inheritances to a spouse;
(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for (i) loss to both spouses, or
(ii) lost income of a spouse;
(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for (i) loss to both spouses, or
(ii) lost income of a spouse;
(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
(f)
property held in a discretionary trust
(i) to which the spouse did not contribute,
(ii) of which the spouse is a beneficiary, and
(iii) that is settled by a person other than the spouse;
(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).
(2)
A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.
In summary:
• Excluded property is all property brought into the relationship or the proceeds from the sale of that property, gifts, inheritances, certain properties held in trust, and certain insurance benefits.
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• Family property is all property acquired during a marriage or marriage-like relationship and the increase in value of excluded property between the date the spouses married or began to live together in a marriage-like relationship and the date they separated.
When dividing property, therefore, the date of marriage or moving in together, and the date of separation become very important dates in determining who gets what.
s. 3 (4) For the purposes of this Act,
(a) spouses may be separated despite continuing to live in the same residence, and
(b) the court may consider, as evidence of separation,
(i)
communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii)
an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.
Of course, the date of separation is usually simple to determine if one spouse moves out of the family home. It may not be so easy if the spouses decide to continue living in the same residence for financial reasons, or to share parenting responsibilities, or for some other reason.
For example:
Ted and Pam have five children. Ted lost his job and has become a very difficult person to live with. His anger, plus the financial stress of trying to maintain a family on one income, has led to the breakdown of the marriage, and Pam wants to separate. However, she cannot afford to move out of the house and pay a babysitter to look after the children while she works.
What action can Pam take to demonstrate her intention to separate from Ted permanently even though she will continue to live in the same house as he does?
She can
• tell him she intends to separate permanently
• move out of the bedroom they share and stop having a physical relationship with Ted
• start describing herself as separated rather than married
• stop attending social functions or going on vacations with Ted
• close any joint bank accounts or joint credit cards
• select “separated” as her marital status on her income tax forms, or any other forms she completes
• have a lawyer prepare a Separation Agreement
Family Debt
Spouses are presumed equally responsible for family debt.
s. 86 Family debt includes all financial obligations incurred by a spouse (a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and
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(b) after the date of separation, if incurred for the purposes of maintaining family property.
Real Property on First Nation Reserve
The Family Homes on Reserves and Matrimonial Interests or Rights Act applies to married spouses and common-law partners (people who have been living in a marriage like relationship for at least one year) living on a First Nation reserve provided at least one partner is a member of the First Nation or a status Indian. This Act allows courts to determine the use, occupation, and possession of family homes on reserves, including exclusive occupation of those homes in cases of family violence, and the division of the value of any interests or rights that they hold in or to structures and lands on those reserves.
Agreements on Dividing Property and Allocating Debt
Spouses may agree to divide property and allocate debt equally or unequally. They may also agree to value property differently than the court would value it. However, the court has the power to set aside or replace agreements that were made under duress, or agreements that take unfair advantage of a spouse’s vulnerability, or agreements that a spouse did not understand.
CHILDREN
Married or not, if a couple has children, the needs of the children must be provided for.
• The Family Law Act deals with issues involving children of married or unmarried individuals.
• The Divorce Act deals with issues involving children of married individuals only.
Therefore, a married person could obtain orders dealing with children under either the Divorce
Act or the Family Law Act. An unmarried person is limited to the Family Law Act.
Take note that the Family Law Act applies to any situation involving children of unmarried parents, regardless of whether they were in a common-law or a casual relationship. They just need to have produced a child to seek a remedy under the Family Law Act.
Children need a place to live, the necessities of life, such as food, and a responsible adult to make decisions about things like medical or legal issues on their behalf. Whether or not a parent applies under the Family Law Act or the Divorce Act the same judicial principles apply in determining how the children’s needs should be met.
The courts make their determination based only on the best interests of the child. To determine the best interests of a child the courts must consider the child’s physical, emotional and psychological safety and wellbeing, together with other factors including:
• the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
• the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
Family Law—Chapter 3
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• the child’s views and preferences.
Section 16 of the Divorce Act says:
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things, (k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
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Section 16(4) of the Divorce Act gives guidance to the court when dealing with situations involving family violence:
16 (4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Section 37 of the Family Law Act similarly says: 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following: (a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; Family Law—Chapter 3
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(g) the impact of any family violence on the child’s safety, security or wellbeing, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
A child, of course, must be in the care of an adult or adults. At the time of a separation or divorce, decisions must be made about parenting arrangements. Parenting arrangements are the decisions made about who has parental responsibility for a child and who has a right to parenting time with the child.
Under the Family Law Act parents who live together are guardians of their children as long as they are together, and after their separation, unless there is an agreement or an order which states otherwise. A parent who has not lived with the child nor regularly cared for the child is not a guardian unless all of the guardians agree that the parent can be a guardian. Only guardians can have parental responsibilities for and parenting time with a child. A person who is not a guardian may have contact with a child, but does not have parental responsibilities for the child.
The Family Law Act makes provisions for consequences
• for a parent who fails to exercise their obligations with respect to parenting time or to contact with a child.
Those consequences can include the loss of the right to spend time with the child, or payment of costs incurred by the other parent because of the failure to exercise the right to parenting time.
• for a parent who wrongfully denies another parent their right to parenting time or contact with a child.
Those consequences can include a requirement for the parties to participate in family dispute resolution, compensatory parenting time, costs incurred by the parent denied the parenting time, a court appearance, and a fine up to $5000.
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Under the Divorce Act, the time that children spend in the care of one of their parents, whether or not the child is physically with the parent (for example, it includes times when children are in school) is referred to as parenting time. Parents that have the responsibility to make important decisions about a child’s well-being are said to have decision-making responsibility. If one parent has all the decision-making responsibilities, they have sole decision-making responsibility. If both parents have decision-making responsibilities, they have joint decision-making responsibility. Finally, contact is court-ordered time granted to a person who is spends time with a child but is not their parent, for example a grandparent or elder.
Where possible, the parties should make a parenting plan to set out their parenting responsibilities. Where the parties cannot agree, the court will make an order known as a Parenting Order that sets out a number of important details about parenting arrangements, such as the time the children will spend with each parent, each parent’s decision-making responsibilities, and how the children will communicate with one parent when spending time with the other parent.
Child Support
There is an obligation for a person to provide for any children they may have. Parents are legally responsible for financially supporting their children until each child reaches the “age of majority”, 19 years old, or longer if the child is disabled or attending school.
Child support is paid to offset the expense of taking care of the children. The child support does not have to be used to purchase things specifically for the use of the children, such as clothing or school supplies, but could go towards general living expenses which benefit both the children and the parent caring for the children. For example, if the child support payment is used to pay rent, both the children and the recipient parent benefit.
Child Support: married vs. unmarried
Parents who are or have been married can choose to make a claim for child support under the
Divorce Act (either as part of a divorce action or as a separate application), or under the Family
Law Act. The application for child support may be made in Supreme Court or Provincial Court.
A claim for child support when parents have never been married may only be made under the
Family Law Act. The application for child support can be made in either the Supreme Court or Provincial Court.
Who Pays Child Support?
The Family Law Act is very clear about who must pay child support and ranks them in order of their obligation to the children:
1. Parents have the primary responsibility to look after their children financially.
2. A guardian who is not a parent has a secondary responsibility to provide support.
3. A stepparent’s responsibility for payment of child support is tertiary.
Stepparents
Child support may be sought from a stepparent under the Family Law Act if two conditions are Family Law—Chapter 3
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1. the stepparent must have contributed to the support of the child for at least one year; and 2. the stepparent must have been either married to the applicant or must have lived with the applicant in a marriage-like relationship for at least two years.
The claim for support from a stepparent must be commenced within one year from the date of the stepparent’s last contribution to the child’s support.
The stepparent’s responsibility for the support of a child comes after the responsibility of the child’s parents and guardians. The length of time during which the child lived with the stepparent, and the standard of living the child experienced during the relationship between the stepparent and the child’s parent or guardian is taken into consideration when determining the support the stepparent would be responsible for providing.
Child Support Guidelines
The Child Support Guidelines were created to “protect the best interests of the child and to make the calculation of child support fair, consistent and predictable”. (Department of Justice) The Tables can be found at: http://laws.justice.gc.ca/eng/ Choose Consolidated Regulations and then the Child Support Guidelines from either the A -> Z or the Frequently Accessed Regulations. You will then need to choose the correct Province and number of children.
In most circumstances the lawyer would consult the tables set out in the Child Support Guidelines to determine the amount of child support to claim.
• The Federal Child Support Guidelines apply to child support orders made under the
Divorce Act.
• The British Columbia Child Support Guidelines apply to child support orders made under the Family Law Act.
The British Columbia Child Support Guidelines (while reflecting our province’s family related legislation) have adopted the support tables in the Federal Child Support Guidelines. Other provinces have their own guidelines.
Because British Columbia has adopted the federal tables, there is usually no need for the lawyer to indicate whether the guidelines being relied on are federal or provincial. The term
“Child Support Guidelines” are used to refer to either (except when specificity is required.) The amount of support in the Child Support Guidelines tables is based only on
• the paying parent’s annual gross income (or capacity to earn income),
• the number of children, as well as any child-specific expenses.
Child-specific expenses reflect the individual needs of each child. These expenses include: Family Law—Chapter 3
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• special expenses, such as reasonable and necessary medical and dental insurance, health related expenses and payments for post-secondary education;
• extraordinary expenses, such as medical treatments not covered by a medical plan, or special sports or musical training (for these special expenses, the court takes into account the combined income and economic status of both parents and the special needs of the child.
The amount of child support can be determined from the Child Support Guidelines tables.
However, depending on the circumstances, a judge may order more than the guidelines suggest.
For example, a child with a long term illness would probably require more financial assistance so the amount of support might be higher.
The Child Support Guideline tables are not meant to usurp the discretion of the court. The court may award a different amount if:
• parenting time is shared;
• parenting time is split;
• it would cause undue hardship;
• there are extraordinary expenses in relation to the child;
• the payor’s income is over $150,000
(The tables would be followed for the first $150,000 and the court would decide the rest if the table amount is considered to be inappropriate);
• the child is 19 years of age or older; or
• the payor is a stepparent.
Child Support and Income Tax
There are two other rules regarding child support that may be of interest to you:
• child support payments may not be claimed as income tax deductions by the payor;
• child support payments are not claimed as income by the recipient.
New Terminology
Prior to March 1, 2021, the Divorce Act used the terms “custody” or “access.” Court orders issued prior to March 1, 2021 will use those terms. Court orders issued after March 1, 2021
will use the terms decision-making responsibility and parenting time.
Custody referred to the right to make decisions about issues such as the child’s education, religion and health care.
Sole custody referred to the situation where one parent made the major decisions about issues such as the child’s education, religion and health care. Generally, the child lived primarily with this parent. This parent would now, with the new terms in the Divorce Act, have sole decision-making responsibility and the majority of parenting time.
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Joint custody referred to the situation were parents made major decisions about the child together. Parents could have joint custody even when the child primarily lived with one of them. Parents with joint custody now have shared decision-making responsibility as well as parenting time.
Access referred to the time a parent or other person spends with a child, usually not the parent with whom the child primarily lives. This is now referred to as parenting time.
Calculating Child Support Using the Child Support Guidelines’ Tables Use the excerpt from the Child Support Guidelines’ tables on the following page to understand of how to calculate child support using the tables.
1. Determine the payor’s gross (before taxes) annual income. Round off to the nearest $100.
Examples:
$58,603.79 per year would round down to $58,600
$97,894.35 per year would round up to $97,900
2. Cross reference the rounded off annual income with the number of children and the correct provincial table. There is a separate table for each of 1 to 5 children, and then a table for 6 or more children. What you will find is the basic amount in a range. To that you must add a percentage of the amount over the lowest number in the range.
Example:
Assume the payor has a gross income of $32,485.39 and 1 child. Rounded off, the annual income would be $32,500.
• The basic monthly amount the payor would have to pay is $299.
• The amount over $32,000 is $500.
o The percentage rate is 1.02
o 1.02% x $500 = $5.10
• The monthly child support payment would be 299 + 5.10 = $304.10.
3. The table only goes up to $150,000. If the amount of income is over $150,000, find the base amount for $150,000 for the correct number of children. Then add to that, the percentage (for the table entry of $150,000) times the excess over $150,000.
Note: the court may decide on an amount different that that calculated on the
income over $150,000 if it finds the calculated amount to be inappropriate.
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Excerpt from the Child Support Tables :
Federal Child Support Tables/
Province : British Columbia/ Colombie-Britannique
Confirm you
Tables fédérales de pensions alimentaires pour enfants
No. of Children/Nbre d’enfants :One/Un
have correct
province and
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number of
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12999
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3.9
12000
61000
61999
577
1.04
61000
110000
110999
1031
0.84
110000
13000
13999
39
1.76
13000
62000
62999
587
1.04
62000
111000
111999
1039
0.82
111000
14000
14999
57
1.78
14000
63000
63999
597
1.04
63000
112000
112999
1047
0.8
112000
15000
15999
75
1.78
15000
64000
64999
607
0.94
64000
113000
113999
1055
0.86
113000
16000
16999
93
1.8
16000
65000
65999
616
0.96
65000
114000
114999
1064
0.84
114000
17000
17999
111
1.82
17000
66000
66999
626
0.96
66000
115000
115999
1072
0.82
115000
18000
18999
129
1.82
18000
67000
67999
636
0.96
67000
116000
116999
1080
0.8
116000
19000
19999
147
1.84
19000
68000
68999
646
0.96
68000
117000
117999
1088
0.88
117000
20000
20999
165
1.24
20000
69000
69999
656
0.96
69000
118000
118999
1097
0.84
118000
21000
21999
177
0.76
21000
70000
70999
666
0.96
70000
119000
119999
1105
0.82
119000
22000
22999
185
0.78
22000
71000
71999
676
0.96
71000
120000
120999
1113
0.8
120000
23000
23999
193
0.78
23000
72000
72999
686
0.98
72000
121000
121999
1121
0.78
121000
24000
24999
201
0.8
24000
73000
73999
696
0.98
73000
122000
122999
1129
0.86
122000
25000
25999
209
1.18
25000
74000
74999
706
0.98
74000
123000
123999
1138
0.84
123000
26000
26999
221
1.56
26000
75000
75999
716
0.98
75000
124000
124999
1146
0.8
124000
27000
27999
237
1.6
27000
76000
76999
726
0.98
76000
125000
125999
1154
0.78
125000
28000
28999
253
1.54
28000
77000
77999
736
1
77000
126000
126999
1162
0.86
126000
29000
29999
268
1.08
29000
78000
78999
746
0.94
78000
127000
127999
1171
0.84
127000
30000
30999
279
1
30000
79000
79999
755
1
79000
128000
128999
1179
0.82
128000
31000
31999
289
1.02
31000
80000
80999
765
0.94
80000
129000
129999
1187
0.78
129000
32000
32999
299
1.02
32000
81000
81999
774
0.98
81000
130000
130999
1195
0.86
130000
33000
33999
309
0.98
33000
82000
82999
784
0.92
82000
131000
131999
1204
0.84
131000
Family Law—Chapter 3
3.16
Relocation
Both the Family Law Act and the Divorce Act require parents with parenting arrangements to give 60 days’ notice if they wish to change their residence, whether or not they intend to move with the child. The Divorce Act also requires any person who has contact with the child under a contact order to give notice of a proposed relocation. The notice must set out the date of relocation, the new address, a proposal as to how the parenting time, decision-making responsibility and/or contact will be exercised. The party receiving the notice can file an objection and apply to court for an order preventing the move.
SEPARATION AGREEMENTS
When a marriage or common-law relationship ends, all of the issues involved must be settled.
The couple could reach a settlement on their own, or have a judge settle the issues for them.
The preferred method is for a couple to reach an amicable agreement. Often, the parties involved will hire lawyers to help in the negotiation of their settlement since the lawyers are objective. The individuals are dealing with personal and emotional issues which may make it difficult for them to negotiate objectively. In addition, most people, while possibly aware that they have rights, are not aware of the legal principles used to figure out how much they are entitled to receive, or must give. Lawyers help their clients to negotiate knowledgeably.
The spouses may negotiate an informal oral agreement; however, when lawyers assist in the negotiations, the lawyers will always have the agreement properly written up in a Separation Agreement.
A Separation Agreement is a contract between two spouses entered into at the time of, or after separation. An agreement is not essential for a separation to be “legal.” Courts may overturn such an agreement if they feel it was improperly made.
The formatting of a Separation Agreement is the same as the formatting for a Marriage Agreement. In our precedent, however, we are showing a different style for the multi-level list.
This style could also be used in a Marriage Agreement. To find instructions how to set up this new style of numbered list, refer to the following page.
Once prepared and executed, Separation Agreements can become part of a court proceeding.
For example, in a divorce, a judge has the authority to order division of assets. If the spouses already came to an agreement regarding assets, the court might incorporate the agreement into the divorce order instead of determining their own order for dividing the assets.
DEFINING THE MULTILEVEL LIST FOR PE 3.2 AND GA 3
Set your font and spacing:
1. open a word document;
2. right-click on Normal and select Modify; 3. change the font to Arial 11 point. Click okay;
4. select the Paragraph tile (bottom right corner arrow box); 5. change Spacing before to 0 and after to 22; and Family Law—Chapter 3
3.17
6. change Line spacing to single. Click okay.
Setting your number style:
1. click on the down facing arrow next to the multilevel list button and choose Define new multilevel list and then in the dialogue box that opens, click on the More button in the lower left corner.
1.1. Settings for level I:
1.1.1. Click level to modify, here choose level I; 1.1.2. Number style for this level choose the Arabic numbers- 1, 2, 3 etc. Notice that the number has a grey box around it. To the right of the grey box enter a period; 1.1.3. Number alignment: left ;
1.1.4. Aligned at: 0;
1.1.5. Text indent at: 0;
1.1.6. Follow number with a tab character with Add a tab stop at 1”.
1.2. Settings for level 2:
1.2.1. Click level to modify, here choose level 2; 1.2.2. in the box Enter formatting for number backspace through what is there to clear the box;
1.2.3. go to the down arrow of the Include level number from box and choose Level 1.
The level one Arabic number now appears in a grey box in the Enter formatting for number box. Follow this with a period. With your cursor still in that box now choose the Number style for this level selecting the Arabic numbers – 1, 2, 3, etc.;
1.2.4. Number alignment: left;
1.2.5. Aligned at: 0;
1.2.6. Text indent at: 0;
1.2.7. Follow number with a tab character with Add a tab stop at: 1”.
1.3. Settings for level 3:
1.3.1. Click level to modify, here choose level 3; 1.3.2. Number style for this level, choose the small case letters – a, b, c etc. Notice that the letter has a grey box around it. To the right and left of the grey box enter parentheses;
1.4. Number alignment: left;
1.5. Aligned at: 0.5;
1.6. Text indent at: 0;
1.7. Follow number with a tab character with Add a tab stop at: 1”.
2. Finally, press OK.
3. After you have used the list for a bit, again click on the down facing arrow next to the Multilevel list button to open the dialogue.
3.1. Notice that this list style now appears at Lists in current documents. Right-click on it there, then left-click on Save in list library to save the style for re-use.
Family Law—Chapter 3
3.18
SEPARATION AGREEMENT
THIS AGREEMENT made the day of October, 2020
BETWEEN:
SALLY ANNE PHILLIPSON, Sailor, of 3394 Maple Street, in the City of Vancouver, in the Province of British Columbia
(hereinafter called the “Sally”)
OF THE FIRST PART
AND:
ROBERT GREGORY PHILLIPSON, Naval Architect, of Suite 430
– 2893 West 8th Avenue, in the City of Burnaby, in the Province of British Columbia
(hereinafter called the “Robert”)
OF THE SECOND PART
WHEREAS the parties hereto were married in the City of New Westminster, in the Province of British Columbia, on the 8th day of June, 2028; AND WHEREAS there are children of the said marriage, namely Paul Phillipson, born the 5th day of June, 2029 and June Phillipson, born the 8th day of May, 2030; AND WHEREAS the parties hereto are the registered owners, as joint tenants, of the lands and premises situated at 3394 Maple Street, in the City of Vancouver, in the Province of British Columbia;
AND WHEREAS Sally has a guideline income of FORTY-FIVE THOUSAND
($45,000) DOLLARS and Robert has a guideline income of ONE HUNDRED FIFTEEN
THOUSAND ($115,000) DOLLARS;
AND WHEREAS unhappy differences have arisen between Robert and Sally and the parties hereto have been living separate and apart since on or about the 1st day of September, 2030, and they have agreed to live separate and apart for the future and to enter into arrangements hereafter set out;
Family Law—Chapter 3
3.19
– 2 –
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises, covenants and agreements herein contained, the parties hereby agree with each other as follows:
1
The parties shall live separate and apart from each other and neither of them will take proceedings of any kind against the other for restitution of conjugal rights, or molest, or annoy, or in any way interfere with each other or make any demands whatsoever upon the other arising from their status as married spouses.
2.
Sally shall have sole decision-making responsibility and the majority of parenting time of the aforesaid children of the marriage, with reasonable parenting time to Robert.
3.
Sally agrees not to permanently remove the said children from British Columbia without either the consent of Robert or further Order of the Supreme Court of British Columbia.
4.
Robert agrees to pay to Sally during their joint lives, or until she shall remarry or cohabit with another in a marriage-like relationship, for her own use, benefit, maintenance and support the sum of EIGHT HUNDRED ($800) DOLLARS a month, commencing on the 1st day of November, [year], payable at FOUR HUNDRED ($400) DOLLARS on the 1st and 15th day of each month thereafter.
5.
Robert agrees to pay to Sally for the use, benefit, maintenance and support of the aforesaid children the sum of EIGHT HUNDRED EIGHTEEN ($818) DOLLARS a month, commencing on the 1st day of November, 2020, payable at FOUR HUNDRED NINE ($409) DOLLARS on the 1st and 15th days of each month thereafter.
5.1
The said payments for each child will cease when the child attains the age of nineteen (19) years, ceases to be under the care of Sally, becomes self-supporting, marries, or dies, whichever shall first occur; PROVIDED HOWEVER that in the event that any child shall attend at an institution of post-secondary education and maintains a passing average, Robert shall maintain such monthly payments in respect to such child until that child attains the age of twenty-two (22) years.
Family Law—Chapter 3
3.20
– 3 –
6.
Robert agrees to maintain for Sally and the said children the medical insurance coverage presently carried, or its equivalent.
7.
Robert agrees to pay all necessary dental expenses incurred by Sally for the said children for so long as he continues in his present employment and for so long as the coverage remains available.
8.
Robert agrees to continue to carry and maintain in good standing Finch Insurance Company’s life insurance policy No. RRR-393-890, with Sally as beneficiary, provided in the event that Sally shall remarry, the parties hereto agree that the beneficiary shall be changed from Sally to any children of the marriage until they attain the age of nineteen (19) years.
9.
The parties hereto agree with each other to sell the aforesaid lands and premises situated at [address] for the best cash price obtainable, not to be less than FOUR HUNDRED
THOUSAND ($400,000) DOLLARS on or before December 31, 20 .
9.1
The parties hereby agree that the net proceeds from the sale of the aforesaid lands and premises, after payment of any commission and usual adjustments, and after payment of such amounts as are necessary to fully satisfy and discharge those certain Mortgages in favour of the Bank of Money and First Finance Ltd., registered in the New Westminster Land Title Office under Nos. K890003 and K89000 respectively, [OR that certain Mortgage in the favour of Bank of Money, registered under No….] shall be paid to Lawson, Ashley & Wright, Barristers and Solicitors, 700 West Georgia Street, in the City of Vancouver, in the Province of British Columbia, in trust, to be distributed and paid in the following manner: (a)
the first TEN THOUSAND ($10,000) DOLLARS to be paid to Sally; (b)
the balance to be divided equally between the parties.
All parties agree to execute all conveyancing and other documents to implement the terms of this Agreement.
Family Law—Chapter 3
3.21
– 4 –
9.2
The parties further agree that until the said lands and premises are sold as aforesaid, Sally shall have the right to the use and occupation of the said lands and premises, and the furnishings contained therein. [May add, if household goods are not divided in this Agreement – Upon the said sale, the parties will arrive at a mutually acceptable division of the furnishings, chattels and household effects contained in or about the said lands and premises.]
9.3
Sally hereby agrees that for so long as she continues to occupy the said lands and premises, she will be responsible for and pay [half of] the mortgage payments and all [half of] the taxes and utilities payable in connection with the said lands and premises, and all [half of the] water and telephone rates. Robert agrees during this period to be responsible for and pay all [half of] fire insurance premiums payable in connection with the said lands and premises.
10.
Sally agrees to sell and Robert agrees to purchase Sally’s half interest in the 30-foot Sungold Trailer now registered in the names of Robert and Sally, for the sum of FIVE
THOUSAND ($5000) DOLLARS. The aforesaid FIVE THOUSAND ($5000) DOLLARS shall be paid by Robert to Lawson, Ashley & Wright, in trust, and upon receipt of same Sally shall execute and deliver to Robert any documents necessary to transfer her interest in the trailer to Robert.
11.
Sally hereby agrees to deliver to the Robert the following chattels, household furnishings and effects: [list items going to Robert]
(a)
black leather chesterfield and one matching chair;
(b)
glass kitchen table and four matching chairs; etc.
Robert hereby quit claims to Sally all his right, title and interest in and to the furnishings of the said matrimonial home and presently in Sally’s possession save and except for the items listed above.
11.1
Robert agrees to deliver to Sally the following items presently in his possession
[or – following chattels, household furnishings and effects]: [list items going to Sally]
Family Law—Chapter 3
3.22
– 5 –
(a)
gold “Classic” watch, engraved “to Martha”’
(b)
[other items Robert will deliver are listed.].
Sally hereby quit claims to Robert all her right, title and interest in and to all items presently in Robert’s possession, save and except for the items listed above.
12.
It is agreed between the parties that at the expiration of two (2) years from the date of this Agreement and at the expiration of each succeeding two-year period, or in the event that Sally becomes gainfully employed, this Agreement may be reviewed by either party as to the amount of maintenance payable to Sally by either party giving not less than forty-five (45) days’ written notice to the other party. If upon such review the parties are unable to agree as to what increase or decrease, if any, there should be in the amount of maintenance payable and if no statutory provision exists for variation of maintenance payments, then either party may submit the matter to a single arbitrator [to be a solicitor qualified to practice in the province], and any such arbitration is to be initiated and conducted in all respects in accordance with the provisions of the Arbitration Act; and each party hereby agrees to be bound by the determination and decisions of the arbitrator as therein provided. The costs of such arbitration shall be payable by the parties in equal shares, PROVIDED HOWEVER that the said payments shall continue until such time as they may be altered as hereinbefore provided.
13.
It is understood and agreed that the parties hereto will henceforth pay all of their own debts and living expenses, save as herein specifically provided, and each one shall indemnify and save harmless the other from and against all and any claims, losses, suits, costs or expenses arising out of any failure to pay their respective debts as aforesaid.
14.
Robert agrees to reimburse Sally for her legal costs in connection with consultation, preparation, and completion of this Agreement.
15.
It is agreed that if Robert and Sally shall at any time hereafter, by mutual consent cohabit as husband and wife for a continuous period of not less than thirty (30) days, then in such case this Agreement shall become null and void.
Family Law—Chapter 3
3.23
– 6 –
16.
It is understood and agreed that should the marriage between the two parties hereto be dissolved, upon the trial of any divorce action, the parties will consent to an Order for support [or maintenance] in the terms of this Agreement, such terms to be merged in Family Law—Chapter 3
3.24
– 7 –
the maintenance provisions of the Divorce Order. In such event, the arbitration provisions will be merged in and replaced by the parties’ rights under Section 11(2) of the Divorce Act.
IN WITNESS WHEREOF the parties have hereunto set their hands on the day and year first above written.
SIGNED BY SALLY ANNE PHILLIPSON IN )
THE PRESENCE OF:
)
)
)
Signature of Witness
)
)
)
Printed Name of Witness
) SALLY ANNE PHILLIPSON
)
)
Address
)
)
)
Address
)
)
)
Occupation
)
SIGNED BY GEORGE ELLIOTT
)
PHILLIPSON IN THE PRESENCE OF:
)
)
)
Signature of Witness
)
)
)
Printed Name of Witness
) GEORGE ELLIOTT PHILLIPSON
)
)
Address
)
)
)
Address
)
)
)
Occupation
)
Family Law—Chapter 3
3.25
Chapter 3 Review
Use these questions to check your understanding of Chapter 3. The answers can be found in the data file named Ch3ReviewKey.pdf Ask your instructor where to find this file.
1. Your client is very angry with her estranged husband. She cannot say anything nice about him at the moment because he is asking that either she buy out his share of the matrimonial home or that it be sold and the proceeds shared equally. Your client knows she cannot afford to buy out her husband’s share of the property. She wants him to support her and the children in the family home. He says he cannot afford to do that.
What are two personal issues is your client dealing with? Explain in detail each issue and how it applies to this situation.
2. When John was 18 years old, his parents adopted Roberta, the 15-year-old daughter of friends who were killed in an accident. Several years later both John and Roberta were away from home at university, and fell in love. They married under their birth names. After six years together, they both realized they were incompatible. John went to a lawyer in your firm to discuss a divorce.
What would the lawyer tell John?
3. What is the purpose of spousal support?
4. What circumstances allow Sally who has never lived with Johnny to apply for spousal support from him if they were never married?
5. On what factors do entitlement to spousal support and length of entitlement for spousal support depend?
6. Under the Family Law Act what consequences may occur for a parent who fails to exercise their obligations with regard to parenting time or to contact with a child.
7. When determining how the child’s needs will be met, on what principle do the courts base their decisions?
8. Under the Family Law Act when are parents not considered to be guardians of their children?
9. Under what conditions may a stepparent to be obligated to pay child support?
10. What factors determine amount of child support a parent must pay according to the Child Support Guidelines?
11. When might the court award an amount of child support that is different from the guideline amount?
Family Law—Chapter 3
3.26
Chapter 3 Terminology
To find the definitions of the following words, use a legal dictionary or refer to the Family Law Act
if it is referenced after the term. Google “BC Laws” and find the statute.
ab initio
annul
child (FLA)
compensatory
contact (FLA)
excluded property ( FLA)
extraordinary expenses
family debt ( FLA)
family property ( FLA)
guardian (FLA)
parent (FLA)
parenting arrangements
parenting time ( FLA)
payor (FLA)
recipient (FLA)
sole decision-making responsibility shared parenting time split parenting time
spouse (FLA)
stepparent (FLA)
support
PE3.1 PRACTICE EXERCISE—CHILD SUPPORT GUIDELINES
Documents/URLs you need:
• Go to: follow the instructions on page 3.13 to view the CS Guidelines.
When you have finished this practice exercise, check your work with the file named PE3.1Key.pdf Ask your instructor where to find the file.
Calculating the Guideline Amount When Income Exceeds $150,000
Example:
Payor’s Annual
Basic Guideline
Income Rounded
No. of
Amount on
Plus
to nearest 100
Children
first $150,000
% of amount over 150,000
Guideline Amount Payable
187,000
3
2802.00
1.56 x 37000 = 577.20
2802 + 577.20 = 3379.20
Step 1— Round the payor’s income to the nearest $100.
Step 2—Find the guideline amount on the table for the first $150,000 of the Payor’s annual gross income.
2802
Step 2—Calculate how much of the Payor’s annual gross income is over $150,000
187,000 – 150,000 = 37,000
Step 3—Find the percentage amount in the tables for income over $150,000 with three children.
1.56% x 37,000 = 577.20
Step 4—Add the guideline amounts for the first 150,000 and for the income over 150,000
2802 + 577.20 = 3379.20
Family Law—Chapter 3
3.27
Using the appropriate guidelines tables, find the Child Support Guideline amount payable in each of the following scenarios. Note: for this exercise all payors and children reside in British Columbia. Remember to round the income to the nearest 100.
Payor’s
Income
Basic
Plus x% of
Guideline
Annual Rounded to
No. of
Guideline
Amount over
Amount
Income nearest 100 Children
Amount
lowest amount in Payable by
range
Payor
57,305
3
83,000
1
152,268
4
18,539
2
63,478
3
243,895
6
38,753
1
127,598
2
43,678
6
325,498
3
PE3.2 PRACTICE EXERCISE—SEPARATION AGREEMENT
Documents/files you need:
• Sweeney Client Information Sheet, below.
• Separation Agreement precedent which begins on page 3.19.
When you have finished this practice exercise, check your work with the data file named PE3.2Key.pdf Ask your instructor where to find the file.
It is now June 5, 2022 and Mr. Sweeney and his spouse separated on June 1, 2022. Mr. Sweeney has asked Ms. Amherst to prepare a Separation Agreement. Put Mr. Sweeney’s name first on the Agreement since he is the client.
Separation Agreement with backing sheet in landscape orientation.
Save the completed Agreement as: PE3.2YourLastName
The date the Agreement is created is June 5, 2022. It will be executed some time in June.
Prepare the original. Use Arial, 11 pt. font.
The parties will sign separately. Ms. Amherst will witness Mr. Sweeney’s signature and Susan Keefer, a lawyer at 6700 Sixth Street, New Westminster, British Columbia V6E 3R3, will witness Ms. Sweeney’s signature. Leave the second attestation clause open.
Family Law—Chapter 3
3.28
CLIENT INFORMATION SHEET
FILE NO.: GBA-023-22
RE.: Separation Agreement
DATE: June 5, 2022
CLIENT IDENTIFICATION
FULL NAME OF CLIENT SEAN DAVID SWEENEY (he/his/him)
TELEPHONE
(Home) 604-202-7892
(Cell) 604-535-5678
ADDRESS
#502-13380 108th Avenue
E-MAIL: david_sweeney@shaw.ca
SURREY BC V3T 0E7
At this residence since June 1, 2022
BIRTH DATE
February 16, 1998
BIRTHPLACE Thunder Bay, ON
BC RESIDENT SINCE
July 15, 2019
SIN
839-678-992
OCCUPATION
Chartered Accountant
GUIDELINE INCOME: $67,000
EMPLOYER:
City of Surrey
TELEPHONE 604-591-4011
14245 – 56th Avenue
SURREY BC V3X 3A2
PARTICULARS OF MARRIAGE/RELATIONSHIP
DATE OF MARRIAGE
July 2, 2019
PLACE
Thunder Bay, ON
DATE OF SEPARATION June 1, 2022
PARTICULARS OF THE PAST
CLIENT
SPOUSE
STATUS BEFORE MARRAGE
SINGLE
SINGLE
NAME BEFORE MARRIAGE
SEAN DAVID SWEENEY
CAITLIN CHLOE DOYLE
SURNAME AT BIRTH
SWEENEY
DOYLE
SPOUSE IDENTIFICATION
NAME OF SPOUSE
CAITLIN CHLOE SWEENEY (she/her/hers)
TELEPHONE
(Home) 604-535-2345 (Work)
ADDRESS
14424 Ridge Crescent
E-MAIL caitlin _sweeney@telus.net
SURREY BC V4A 9G3
At this residence since December 1, 2020
BIRTH DATE
June 25, 1994
BIRTHPLACE: Everett, ON
BC RESIDENT SINCE
July 15, 2019
SIN
817-937-391
OCCUPATION
Chartered Accountant
GUIDELINE INCOME $60,000.00
EMPLOYER:
Heming, Wyborn & Grewal
TELEPHONE 604-576-9121
#200 – 17618 – 65 Avenue
Surrey, BC V35 1L3
MATRIMONIAL PROPERTY
REAL PROPERTY: House at 14424 Ridge Crescent, Surrey, B. C., owned as joint tenants by the parties PERSONAL PROPERTY: Already divided
Family Law—Chapter 3
3.29
Paragraphs: (Refer to the precedent which begins on page 3.19.) Use five beginning unnumbered paragraphs for the preamble. Since the Sweeney’s do not have children, the paragraph in the preamble which mentions children can be omitted.
Compose and number the following paragraphs as shown:
1.
Re living separate and apart: copy paragraph 1 from the Separation Agreement in precedent, starting with “The parties….”
2.
Re dental coverage: use the wording below:
“Sean agrees to retain his present dental coverage, or its equivalent, for Caitlin for so long as the parties hereto remain married.”
3.
Re selling home for not less than $660,000 on or before December 31, 2022: copy paragraph 9, making appropriate changes
3.1
Re proceeds of sale of home being used to discharge a Bank of Montreal Mortgage registered in the New Westminster Land Title Office under No. 53728, then paid to Amherst Brown & Company in trust, then given equally to the parties, who agree to execute all document:. Copy paragraph 9.1, making the appropriate changes. Instead of the words “and paid in the following manner…”, key the words “and paid to the parties in equal shares.” (continue with the sentence re agreement to execute documents).
3.2
Re Caitlin remaining in home until sold: copy paragraph 9.2, making the appropriate changes. (The household goods are already divided.)
3.3
Re Caitlin paying all of the mortgage payments, all of the utility, water and telephone payments, and half of the taxes and fire insurance, and Sean paying half the taxes and fire insurance: copy paragraph 9.3 making the appropriate changes.
4.
Re Sean releasing claims to Caitlin’s assets: use the following wording:
“Sean hereby releases all claims to Caitlin and all his right, title and interest in and to all furnishings of the matrimonial home and items presently in Caitlin’s possession.”
4.1
Re Caitlin releasing claims to Sean’s assets: similar to paragraph 4 above; make the appropriate changes. For instance, it would start “Caitlin ….”
5.
Re indemnity clause: copy paragraph 13.
6.
Re legal costs: copy paragraph 14 to indicate that Sean agrees to reimburse Caitlin for her legal costs in connection with consultation, preparation and completion of the agreement.
7.
Re agreement void on reconciliation of not less than 28 days: copy paragraph 15, making the appropriate change.
Use the appropriate testimonium and attestation clauses. Do not use seals.
Create a backing sheet in landscape orientation using the instructions in Appendix One for a backing sheet for a legal instrument.
Footer: PE3.2YourName
Family Law—Chapter 3
3.30
GA3 GRADED ASSIGNMENT— STOCKER SEPARATION AGREEMENT AND
TRANSMITTAL LETTER
Documents/files you need:
• Stocker Client Information Sheet (below).
• Separation Agreement precedent, pages which begins on page 3.19
• Child Support Guidelines: http://laws-lois.justice.gc.ca/eng/regulations/
Step 1—You prepare a Separation Agreement from written instructions.
Save the completed Agreement as: GA3AgreeYourLastName
Date: Leave the date open.
Font: Use Arial, 11 pt. font.
Heading/Exordium
Use the standard heading for the document.
Preamble/Recital
Use the marriage date clause, children’s birth date clause, the description of home owned clause, the guideline income clause, the date of separation clause, and the standard “NOW
THEREFORE” clause.
Body
Refer to page 3.17 to 3.18 for instructions on setting up the multi-level list.
1. Re living separate and apart: copy paragraph 1 from the Separation Agreement in the precedent.
2. Re parenting time: copy paragraph 2 changing Eric’s parenting time to generous.
3. Re not removing children from the province: copy paragraph 3 choosing British Columbia (not Canada)
4. Re Karen’s support/maintenance: the amount of the maintenance is $500 commencing on the 15th day of June 2022 and payable on the 15th day of each month thereafter.
5. Re children’s support/maintenance: use paragraph 5 in the precedent manual, but the amount payable will be according to the Child Support Guidelines (calculate and enter
the correct amount here) commencing on the 1st day of June of 2022, payable at (one-
half of the total calculated child support) on the 1st day of each month and (one-half
of the total calculated child support) payable on the 15th day of each month thereafter.
5.1 Re children’s support/maintenance: use paragraph 5.1 in the precedent.
6. Re medical coverage: Use the paragraph 6 in the precedent.
7. Re dental coverage: Use paragraph 7.
8. Re sale of matrimonial home: “Eric agrees to sell and Karen agrees to purchase Eric’s half interest in the matrimonial home at 3240 Meadowbrook Drive in the City of North Family Law—Chapter 3
3.31
Vancouver, for the sum of $450,000. The aforesaid $450,000 shall be paid by Karen to Amherst Brown & Company in trust, and upon receipt of same Eric shall execute and deliver to Karen any documents necessary to transfer his interest in the matrimonial home to Karen.” (Format the dollar amounts correctly.)
9. Re division of matrimonial assets: Insert a paragraph saying: “The parties agree each may keep all matrimonial assets currently in their possession.”
10. Re indemnity: use the standard indemnity clause which is paragraph 13 in the precedent.
Number it 10.
11. Re Karen reimbursed for legal costs clause: paragraph 14 in the precedent. Number it 11.
12. Re cohabitation: use paragraph 15 in the precedent. Number it 12.
13. Re dissolution of the marriage: use paragraph 16 in the precedent manual; however, drop the last sentence which starts “in such event, the arbitration provision…” Number it 13.
Testimonium and Attestation Clauses
Use the standard testimonium clause and use seals. Key two attestation clauses. Gail will witness Ms. Stocker’s signature. Someone in the firm Mr. Stocker has hired will witness his signature. Do not fill out the clause for that firm. Use tables for the signature block.
That is the end of the Separation Agreement. It will require a backing sheet. Use landscape orientation. See Appendix One for instructions for creating a backing sheet for a legal instrument.
Footer: GA3AgreeYourName
Step 2—You prepare a transmittal letter.
Documents/files you need:
• Data file Amherst Brown & Company Letterhead
• Precedent of a transmittal letter on page 3.34.
Save the completed letter as: GA3LetterYourLastName
Use the date: June 10, 2022
Using Arial 11 pt., full block style with mixed punctuation, on Amherst Brown & Company letterhead key a transmittal letter to Eric Stocker’s lawyer delivering two copies of the Separation Agreement that Ms. Stocker has signed and initialed, asking Mr. Stocker to sign and initial the Agreements and to send one copy of the signed document back to Amherst Brown & Company.
Family Law—Chapter 3
3.32
Mr. Stocker’s Lawyer:
Martin Lesser
LESSER, HOLLER & COMPANY
Barristers and Solicitors
2340 Marine Drive
North Vancouver, BC V3V 1G2
Telephone: 604-323-5587
Stocker File No. 23456
Footer: GA3LetterYourName
You prepare a transmittal letter to Martin Lesser, lawyer for Mr. Stocker.
1. Download the Amherst Brown Letterhead file from the Data Files folder and save it with the name GA3LetterYourName.
2. Use the precedent on the next page as your guide. You will have to adapt the body of your letter by listing only those documents you are sending to Mr. Lesser.
3. Use Arial 11 pt. font for your letter.
4. Remember to add a footer with the GA3LetterYourName at the left margin.
Submission Instructions
Submit a printed one-sided copy of the Agreement. Your instructor will give you instructions for submitting the electronic files.
Family Law—Chapter 3
3.33
Amherst Brown & Company 5432 West Pender Street Vancouver, BC V3L 5B2
Telephone: (604) 555-0150
Barristers and Solicitors
Fax: (604) 555-0151
February 22, 2020
Leave 3 to 8 blank lines after the date.
Jake Schultz
JAKE SCHULTZ, BARRISTER AND SOLICITOR Leave only 1 blank line after the inside Suite 300 – 3890 West Hastings Street
address, the greeting, and the subject
Vancouver, BC V7E 4R5
line.
Dear Mr. Schultz:
Re: DeHoney Separation
The line under the two- or three-line subject line
Your File No. JS-8942
must be as long as the longest line.
Our File No. GBA-456-19
We have enclosed two copies of the DeHoney Separation Agreement which have been executed by Mr. DeHoney.
Please have Ms. DeHoney execute both copies and return one copy to this office upon execution.
We look forward to receiving the signed document at your earliest convenience.
Yours truly,
AMHERST BROWN & COMPANY
Leave enough room under the firm name for the
lawyer to sign, about three blank lines.
Gail B. Amherst
GBA:yoi
Enclosures 2
The enclosure notation must be the last line of the letter.
Family Law—Chapter 3
3.34
CLIENT INFORMATION SHEET
FILE NO. GBA-010-22
RE Separation Agreement
DATE May 17, 2022
CLIENT IDENTIFICATION
FULL NAME OF CLIENT KAREN LOUISE STOCKER (she/her/hers)
TELEPHONE
(Home) 604-988-1234
(Cell) 604-525-6780
ADDRESS
3240 Meadowbrook Drive
E-MAIL stocker_jl@shaw.ca
North Vancouver, BC V3R 4B2
At this residence since April 1, 2011
BIRTH DATE
December 21, 1984
BIRTHPLACE Moose Jaw, SK
BC RESIDENT SINCE
2009
SIN 724-677-890
OCCUPATION
Dietician
GUIDELINE INCOME $58,000
EMPLOYER
Lions Gate Hospital
TELEPHONE 604-984-5813
231 East 15 Street
North Vancouver, BC V7L 2L7
PARTICULARS OF MARRIAGE/RELATIONSHIP
DATE OF MARRIAGE
April 1, 2014
PLACE Regina, SK
DATE OF SEPARATION
April 13, 2022
SEPARATION AGREEMENT None
PARTICULARS OF THE PAST, CARE OF CHILDREN
CLIENT
SPOUSE
STATUS BEFORE MARRAGE
SINGLE
DIVORCED, NO CHILDREN
NAME BEFORE MARRIAGE KAREN LOUISE MALCONTENT
ERIC JOHN STOCKER
SURNAME AT BIRTH
MALCONTENT
STOCKER
Both the parties have loving, committed relationships with their children and are committed to co-operative co-parenting. The children attend Meadowbrook School which is two blocks from the family home and three blocks from Eric’s present residence. Karen works Mondays to Fridays from 6:00 a.m. to 2:00 p.m. and Eric works Mondays to Fridays from 8:30 a.m. to 4:00
p.m. The family has a long-time sitter who comes in Mondays to Fridays from 5:30 a.m. to 9:00
a.m. to prepare breakfast and lunches for the children and take them to school. The children eat their lunch at the school. Karen walks to school to bring the children home. Since the separation the children have resided primarily with Karen. They visit Eric at his residence several times a week and usually for one day on the weekend. It is the intention that Karen shall have sole decision-making responsibility and the majority of parenting time with generous parenting time to Eric. Karen intends to purchase Eric’s half of the family home.
Family Law—Chapter 3
3.35
SPOUSE IDENTIFICATION
NAME OF SPOUSE
ERIC JOHN STOCKER (he/him/his)
TELEPHONE
(Cell) 778-294-5678
ADDRESS
4230 Meadowbrook Drive
E-MAIL: stocker_ericj@shaw.ca
North Vancouver, BC V3R 4B9
At this residence since May 1, 2022
BIRTH DATE
June 25, 1980
BIRTHPLACE North Vancouver, BC
BC RESIDENT SINCE
Birth
SIN 726-455-3974
OCCUPATION
Civil Engineer
GUIDELINE INCOME $167,000
EMPLOYER:
City of North Vancouver
TELEPHONE 604-983-7333
141 West 14th Street
North Vancouver, BC V7M 1H9
CHILDREN
NAME
SEX
BIRTH DATE
PLACE OF BIRTH
Emily Jane Stocker
Female
December 19, 2014
North Vancouver, BC
John Eric Stocker
Male
October 5, 2015
North Vancouver, BC
MATRIMONIAL PROPERTY
REAL PROPERTY: House at 3240 Meadowbrook Drive, North Vancouver, B. C., owned as joint tenants by the parties
PERSONAL PROPERTY: Already divided.
Family Law—Chapter 3
3.36
PROVINCIAL COURT PROCEEDINGS
INTRODUCTION
Both the Family Law Act and the Divorce Act provide potential remedies for individuals going through a family break-up. This chapter will examine in greater detail the overlaps in the legislation and define when an individual or a couple may apply to the Provincial (Family) Court instead of to the Supreme Court of British Columbia.
The chapter continues with a brief summary of a Provincial Court proceeding. Although the focus of this textbook will be on Supreme Court of British Columbia divorce procedures, a legal administrative assistant should be familiar with provincial proceedings. Many of the documents and processes in a provincial proceeding are similar to those found in a divorce proceeding.
PROVINCIAL COURT VERSUS SUPREME COURT
Under the Canadian Constitution, the provincial and federal governments have overlapping jurisdiction over matters that may arise relating to family breakups.
The Family Law Act is British Columbia’s statute that handles spousal support, child support, parenting arrangements, contact and the division of property issues for non-married or married individuals.
The Divorce Act is the federal statute that grants divorce for married couples. It also provides corollary remedies for spousal support, child support, parenting time, and the allocation of decision-making powers with respect to children that arise in conjunction with a divorce. It does not provide any remedy for division of property. It does not provide any remedy to unmarried individuals.
The Family Homes on Reserves and Matrimonial Interests or Rights Act is a federal statute that provides a process for dealing with family homes on a First Nation reserve and applies to non-married or married individuals who live on a reserve where at least one of the parties is a First Nation band member, entitled to be a band member, or a status Indian.
Remedies, except for the division of family property and family debt, under the Family Law Act
can be granted by both the Provincial (Family) Court and the Supreme Court of British Columbia.
Remedies for the division of family property and family debt under the Family Law Act, and all remedies under the Divorce Act and Family Homes on Reserves and Matrimonial Interests
or Rights Act can be granted only by the Supreme Court of British Columbia.
Proceedings in Provincial (Family) Court are usually less expensive than proceedings in the Supreme Court. The Provincial (Family) Court tends to be very layperson friendly with most parties unrepresented by lawyers. The procedures in the Provincial (Family) Court tend to be simpler and less formal than those in the Supreme Court. As a result, usually only married individuals seeking a divorce or division of family property start Supreme Court proceedings.
Family Law—Chapter 4
4.1
In addition to the Family Law Act remedies, the Provincial (Family) Court also provides related remedies such as enforcement orders and protection orders.
The Provincial (Family) Court is only available if both parties reside in the province. If one party is out of the province, proceedings must be held in the Supreme Court.
STATUTES THAT DEAL WITH FAMILY LAW ISSUES
Family Law Act (FLA)
Divorce Act
-applies to married and unmarried spouses, and -applies to married spouses couples who have children together
Remedies available under only the FLA:
Remedy available under only the Divorce Act:
• division of property*
• divorce
• division of debts
• annulment
• protection orders
Remedies available under both
Family Law Act
and
Divorce Act:
to married and unmarried spouses
to married spouses
• parenting arrangements
• child support
• spousal support
*Remedies available under Family Homes on Reserves and Matrimonial Interests or Rights Act
• orders respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves
Family Law—Chapter 4
4.2
COURTS THAT DEAL WITH FAMILY LAW ISSUES
Provincial (Family) Court
Supreme Court of British Columbia
*both parties must reside in British Columbia
Any proceeding held in the Provincial Court can also be
held in the Supreme Court.
Proceedings for:
Proceedings must be held in the Supreme Court if
• guardianship
• child support
1. one party lives outside of BC, and/or
• parenting arrangements
2. the applicant wants an order for:
• contact with children
• divorce
• protection orders
• annulment
• spousal support
• adoption under the Adoption Act
• variation of previous orders made in the
• division of property
Provincial Court
• division of debts
• maintenance enforcement
• decision-making and/or parenting time
• variation of previous orders made in
under the Divorce Act
Provincial Court.
• variation of previous orders made in the
Supreme Court of British Columbia
PURPOSE OF PROVINCIAL COURT FAMILY RULES
The purpose of the Provincial Court Family Rules is to encourage parties to resolve the issues (or at least some of the issues) on their own, or if that is not possible to obtain a just and timely decision considering the impact of the case on the family. While court procedures are often contentious, the Provincial Court Family Rules aim to minimize conflict and promote cooperation between the parties.
NEW PROVINCIAL COURT FAMILY RULES
In May of 2021, the previous Provincial Court (Family) Rules were repealed and replaced with the current Provincial Court Family Rules. The new rules changed terminology, process, and court forms.
Terminology
Under the old rules, the person that started the family law proceeding was called the applicant and the person that responded to the application was called the respondent. In an effort to make the process less adversarial, the new rules only have “parties”.
To distinguish between the parties, people may refer to them with specific terms such as filing party (previously, the applicant) and other party (previously, the respondent) or Party 1
(previously, the applicant) and Party 2 (previously, the respondent). Because these changes are new, you may still hear people referring to the parties by their old terms.
Family Law—Chapter 4
4.3
The Provincial Court Family Rules were designed to improve case management and to provide more opportunities for early settlement. Parties may be required to participate in a needs assessment, parenting education courses, and/or consensual dispute resolution. Priority matters, such as protection orders and orders prohibiting relocation, have their own processes separate from the long-term litigation.
Court Forms
The Provincial Court Family Rules made significant changes to the court forms names, content, and appearance. As of May 17, 2021 all new cases are required to use the new forms for all documents and all cases commenced prior to May 17, 2021 are required to use the new forms for all filings made on or after May 17, 2021.
PRELIMINARY STEPS PRIOR TO STAGES OF LITIGATION
Currently, there are four different types of Provincial Family Court registries in British Columbia: the Early Resolution Registry (Surrey and Victoria), the Family Justice Registry (Vancouver, Kelowna and Nanaimo), the Parenting Education Program Registry (Abbotsford, Campbell River, Chilliwack, Courtney, Kamloops, New Westminster, North Vancouver, Penticton, Port Coquitlam, Prince George, Richmond and Vernon) and the Court Registry (all other locations).
Parties to a family matter must file their documents in the registry closest to where the filing party lives (if there are no child-related issues) or in the registry closest to where the child lives most of the time (if there are child-related issues).
Anyone a child spends time with, such as a grandparent, elder, or other relative, can apply for contact with a child.
The Early Resolution Registry
If filing in an Early Resolution Registry, the filing party must: a) file a Notice to Resolve (Form 1) to get their needs assessed by the Justice Access Centre;
b) attend a parenting education program, if applicable; and
c) participate in Consensual Dispute Resolution, if appropriate.
If the parties are unable to reach an agreement after completing these steps, they would proceed to Stage One of litigation by filing an Application About a Family Law Matter (Form 3).
The Family Justice Registry
If filing in a Family Justice Registry, the filing party would proceed directly to Stage One of litigation by filing an Application About a Family Law Matter. After filing the Application, the parties must get their needs assessed by the Justice Access Centre and, if applicable, attend a Parenting Family Law—Chapter 4
4.4
Education Program. This registry does not require a Consensual Dispute Resolution, but the parties may participate in one voluntarily.
The Parenting Education Program Registry
If filing in a Parenting Education Program Registry, the filing party would proceed directly to Stage One of litigation by filing an Application About a Family Law Matter. This registry does not require a needs assessment or Consensual Dispute Resolution, but the parties may participate in either voluntarily. After filing the Application, the parties must attend a Parenting Education Program, if applicable.
All Other Registries
For all other registries, the filing party would proceed directly to Stage One of litigation by filing an Application About a Family Law Matter and there would be no needs assessment, Consensual Dispute Resolution or Parenting Education Program requirements (though they may be recommended).
Summary of Court Registry Requirements
Early Resolution
Family Justice
Parenting Education
Court Registry
Registry
Registry
Program Registry
Surrey
Kelowna
Abbotsford, Campbell
All other registries
Victoria
Nanaimo
River, Chilliwack,
Vancouver
Courtney, Kamloops, New
Westminster, North
Vancouver, Penticton, Port
Coquitlam, Prince George,
Richmond and Vernon
Before filing an
Before attending a
Before attending a family
No additional
application or reply:
family management
management conference:
requirements
• File a Notice to
conference:
• Parenting education
•
Voluntary services
Resolve a Family Law
• Participate in needs
program
available
Matter (filing party
assessment
• Voluntary needs
only)
• Parenting education
assessment
• Participate in needs
program
• Voluntary consensual
assessment
• Voluntary consensual
dispute resolution
• Parenting education
dispute resolution
program
• Consensual dispute
resolution (if
appropriate)
*There are exceptions to the requirement for certain circumstances or parties PARENTING EDUCATION PROGRAM
At this time, the following Parenting Education Programs are available to all parties: 1. A free three-hour course called Parenting After Separation that helps parents consider their children’s best interest in the context of a separation.
Family Law—Chapter 4
4.5
2. A free three to four-hour course called Parenting After Separation for Indigenous Families. This course was developed for families with a parent, guardian or child who identify as Indigenous.
STAGES OF LITIGATION IN PROVINCIAL (FAMILY) COURT
Because the procedures for provincial family law are often used by individuals who are not represented by lawyers, the forms and procedures are designed to be clear and easily understood by the average person. The forms are generally in the first-person format. They are designed to give the parties the opportunity to tell their story and collect the necessary information (often in schedules specific to the issues involved) to collect the necessary information to allow for informed decisions.
A family action in provincial court follows the Litigation Model that applies to all litigation proceedings.
Stage One
Stage Two
Commencing Court Process &
Defining the Legal Issues
Notifying Parties Involved
The parties exchange court documents
(“Pleadings”) stating the facts and legal
A party files documents to commence the
positions of their side of the case.
action and then notifies the other parties
involved that a court process has been
commenced. Parties confirm they wish to be
involved. Parties provide information on how
to contact them or their lawyers.
To simplify the process, provincial court proceedings combine Stages 1 and 2, and 3. Depending on which registry the action is commenced in, additional preliminary steps may need to be taken before the parties can begin the stages of litigation.
APPLICATION TO OBTAIN A FAMILY LAW ORDER