Family Law

Sometimes you may be disappointed with the outcome of a court decision and want to consider an appeal. An appeal is not re-hearing of the case, and the Court of Appeal generally does not interfere with the decisions of the court below unless the judge made a mistake on the law or made an obvious error about a key fact in the claim.

Appeals can be expensive and before you consider making an appeal, you should get some legal advice about the decision you wish to appeal. There are different rules for appealing depending on which court made the order you wish to appeal, whether the order is a interim or final order, and strict timelines for filing documents. The Court of Appeal introduced new rules for the appeal process that come into effect July 1, 2022.

Apna Law’s Vancouver and Burnaby family lawyers have a significant appellate advocacy experience and can advise clients on whether their appeal should be pursued and if so, they will prepare your case in compliance with the rules and advocate for you at the hearing.

Both parents have an obligation to support their children upon separation. When spouses separate, a parent may have to pay money to the other parent for the support of the children. There are two types of support that parent may have to pay, basic child monthly child support and special expenses.

Child Support is calculated by taking each parents’ income and calculating support under the Federal Child Support Guidelines. There are different methods to calculate a parent’s income under the guidelines, especially if one parent has their own business, is self-employed, or controls a corporation. If one parent lives in another country, that party’s tax rate in the country they live in will affect the amount of support payable. The parent responsible for paying support depends on the parenting arrangement for their children. Where parents have substantially equal parenting time, each parent may have to pay support to the other with the net difference being paid as a “set off”. When the child turns 19, child support may still be payable depending on the circumstances of the child, usually when they are pursuing post-secondary education.

Special expenses include cost for childcare, medical expenses, dental work, education expenses and some extracurricular activities and are usually shared in proportion to each person’s income.

Determining how much a parent is supposed to pay for child support can range from relatively simple or complex depending on the parties’ income. Our family law lawyers can provide the expertise necessary to help clients navigate and negotiate fair child support.

Spousal Support

Spousal support is available to people who were married and in a common law relationship for at least two years. There is no automatic right to spousal support in British Columbia. To qualify for spousal support, a person must firstly be considered a “spouse” under the Family Law Act. Secondly, a spouse seeking support must show entitlement to support based on a variety of factors. Some of those factors include whether a spouse took time out of the workforce to stay home with the children and sacrificed their career advancement for the other spouse.

The amount of support a spouse has to pay and the length of time they have to pay it can vary depending on the length the spouses were married, the role each person had the relationship, their relative incomes, and whether there are children. When awarding spousal support, the Courts will often refer to the Spousal Support Advisory Guidelines to determine the proper amount.

While spousal support is often paid monthly, in some cases the courts may award spousal support as a “lump sum”.

The law around spousal support gives the court much discretion and legal advice on spousal support is highly recommended.

Many spouses resolve their separation by a separation agreement rather than the court process. A separation agreement can finalize the parenting arrangements, property division as well as child and spousal support. Our Burnaby and Vancouver Family lawyers can help with gathering financial information and negotiating the terms for your separation agreement. We provide independent legal advice if you have been asked to sign agreement and can assist where a spouse has not complied with a separation agreement that has been signed.

If you are in a relationship and thinking of getting married or moving in together, it is essential to obtain preliminary legal advice about whether a cohabitation or prenuptial agreement is right for you. If you have property that you purchased before the relationship or expect to receive inheritance, you may want to ensure your property is protected before taking the next step in your relationship. Our lawyers can give you advice about whether you need a cohabitation or prenuptial agreement and properly prepare an agreement that gives you protection and peace of mind.

Whether you were married in Canada or abroad, the Supreme Court of British Columbia can grant you a divorce. If you and your spouse have minor children, the Court must be satisfied there are reasonable arrangements in place for them before they will grant you a divorce.

There are three possible grounds for a Court to grant a spouse a divorce in Canada:

1. The husband and wife have been living separate and apart for at least one year;
2. There has been adultery; or
3. There has been cruelty.

The most common ground for obtaining a divorce is where spouses have lived separate and apart for more than one year. This does not mean that you must be living in separate houses. Spouses often must remain living in the same house for financial reasons. Living “separate and apart” can mean living separate lives in the same residence. While it is possible to obtain a divorce for adultery, or physical or mental cruelty these methods are very rare and costly. Most people in British Columbia obtain a divorce on the basis they have been living separate and apart for at least one year.

There is no requirement to appear in Court for a divorce. If you and your spouse agree on how you want to divide family property or debt, and how the children will be cared for, a judge can grant a divorce without anyone appearing in court. This is called a “Desk Order Divorce”.

If you and your spouse cannot agree on how much child support should be paid and how the children will be cared for, you may need to work with a mediator or appear in court.

If you obtain a Divorce without dividing the family property and determining any spousal support, you have two years from the date you obtain a Divorce to make a claim for family property and spousal support.

Our firm can help with every step of the divorce process from simple desk order divorces to complicated asset division and high conflict parenting situations. We pride ourselves on providing excellent legal representation in a cost-effective way.

Separating from a spouse can be the most stressful experience in someone’s life. Whether you are thinking about separating or have already separated, it is crucial to discuss your rights and obligations with an experienced family lawyer. Spouses who are married can separate from their spouse but will need to obtain a divorce to end their legal relationship. People who have been living together in a “marriage like relationship” for more than two years are also considered “spouses” but do not need to obtain a legal separation to end their relationship.

Annulment

While the vast majority of marriages in Canada end by the court granting a divorce, in rare cases it is possible to get an annulment. Divorce and annulment have the same result: dissolution of the marriage.

Although both divorce and annulment both end a marriage, both have different legal results. A divorce is considered “prospective” in that it affects the parties’ status in the future. A couple who obtains a divorce is no longer legally married to each other, but the law still recognizes that the parties were married at some point in the past.

A couple who divorces may need to divide up their assets and deal with any spousal support obligations should they arise. An annulment is different in that it is “retroactive”. It applies to the couple’s status in the past and makes the couple’s marriage “void”. In this way, the law would treat the couple as if they had never married to begin with.

A marriage may be annulled if one party has been unable to consummate the marriage, whether one party was incapable of consenting to be married or where one party was legally unable to marry (ie, had not been divorced from a prior spouse before entering into the next marriage).

The court will not grant an annulment unless there is sufficient evidence. If you are seeking an annulment for a failure to consummate, the onus is on the party seeking the annulment to establish that one or both of the parties is incapable of engaging in sexual intercourse due to a physical or psychological incapacity. This is usually done by affidavit or sworn testimony.

Although annulments are uncommon Apna Law’s Vancouver and Burnaby family lawyers can give you sound legal advice on whether this option is available you and prepare the necessary documents.

Separation

Spouses are deemed to be “separated” when they are no longer living in a marriage like relationship. It’s possible to still be separated even if you are still living in the house. When spouses are living separate lives, they are considered living “separate and apart”. Common law spouses who separate have two years from the date they separate to make a claim for property division and spousal support. Spouses who are married have two years from the date they obtain a divorce in order to make a claim for property division and spousal support. It is important not to delay in acting on your rights and to make a claim as soon as you separate. Our experienced Apna Law family lawyers can help you understand your legal rights before and after you separate.

Property division, child support and spousal support can pose unique challenges for couples with high net-worth or significant corporate or international holdings. If you or your spouse owns or controls a corporation or has international holdings determining guideline income and valuing family property can be significantly complicated and have unforeseen tax consequences for both parties if the right expertise is not engaged.}

Our Apna Law’s Vancouver and Burnaby family lawyers work with accountants, tax specialists and business valuators as part of a coordinated approach for our clients.

Once you obtain a judgement or an order, you may need to take steps to enforce an order if the other party does not comply. The good news is the Family Law Act provides tools to enforce orders where one party does not comply that can include fines for non-compliance. If you have an order that another party is refusing to comply with, Apna Law’s Vancouver and Burnaby family lawyers can help you through the enforcement process.

If you have a court order or agreement in place, you may find yourself in a situation where you need to change it. If you have lost your job or changed employment, you may need the terms of child and spousal support to change to reflect your income. You may need to change the parenting schedule for your children if your original schedule is no longer working because of a change in you or your child’s life.

In order to change an order for support and/or parenting arrangements the parent seeking a change must satisfy the court that there has been a material change in circumstances. Not every change will result in a variation. The law requires a change that alters a child’s needs or the ability of the parents to meet those needs in a fundamental way that could not have reasonably been anticipated at the time the original order or agreement was made.

If you are thinking about varying an order or looking to change an agreement, Apna Law’s Vancouver and Burnaby family lawyers can give you sound legal advice and help ensure that your best case is presented to the court.

The language surrounding custody”of children is changing. With new changes to the Divorce Act, time with children is now called “parenting time”.

There is no rule that spouses will share parenting time equally when the children separate. When the court makes an order about who the children should live with and how decisions will be made about the children, the court must only consider the best interests of the children.

The Family Law Act, sets out the factors that a court will look at when determine what is in the children’s best interests, including:

• the child’s health and emotional well-being;
• the child’s views, unless it would be inappropriate to consider them;
• the nature and strength of the relationships between the child and significant persons in the child’s life;
• the history of the child’s care;
• the child’s need for stability, given the child’s age and stage of development;
• 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;
• the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
• 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;
• 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;
• any civil or criminal proceeding relevant to the child’s safety, security or well-being.

There are a variety of different ways spouses can structure their time with their children that best meets their needs. Some parents have a week on/week off arrangement, some have a 2-2-5-5 arrangement and some have every second weekend. In some cases, both spouses or the court request a psychologist to prepare a report to help the court determine the best arrangements. These are referred to as Section 211 Reports (from section 211 of the Family Law Act) and they can range in cost.

Our Apna Law family lawyers have a wealth of experience in helping clients navigate parenting time and parental decision making both in the courtroom and in alternative resolution such as mediation and negotiation.

If you are married or in a common law relationship, you may need to divide your family property and debt according to the Family Law Act. Family property generally includes anything such as a house, car, bank account, or pension, in either spouses name that exist at the date separation. Family property also includes anything purchased after separation if it comes from family property that existed at the date the parties separate. As an example, if a condo is purchased after the parties separate with family funds that were in a spouse’s bank account on the date of separation, the condo would be considered family property.

Under the Family Law Act (section 83) when parties separate, each spouse is entitled to an equal share in the family property and is equally responsible for family debt, regardless of whether that spouse used or contributed to that property or debt.

The Family Law Act has an extensive list of what things are considered “family property”, including:

• a share or an interest in a corporation;
• an interest in a partnership, an association, an organization, a business or a venture;
• an interest in a partnership, an association, an organization, a business or a venture;
• property owing to a spouse
  • as a refund, including an income tax refund, or
  • in return for the provision of a good or service;
• money of a spouse in an account with a financial institution;
• a spouse’s entitlement under an annuity, a pension plan, a retirement savings plan or an income plan;
• property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;
• the amount by which the value of excluded property has increased since the later of the date
  • the relationship between the spouses began, or
  • the excluded property was acquired.

Family property is determined based on fair market value as at the date it is divided or the date of trial, unless the court determines another date should be used. Things like a chequing account that spouses use on a day to day basis are normally valued at the date the parties separate.

Before you and your spouse negotiate dividing your property and debt it is important to speak to an experienced family lawyer who can give you advice about your rights and obligations. Our family lawyers at Apna Law have extensive experience in assisting their clients with every aspect of asset and debt division at trial and as part of mediation.

When spouses with children separate it can be increasingly expensive and difficult to remain in the same city. A parent may want to move with the children somewhere else to be closer to family or pursue a career opportunity.

The process for relocation is different if there is an agreement or order in place that sets out the parenting time and residence for the children.

If there is no agreement or order, the Court will determine whether or not changing the children’s residences is in the child’s best interest. If there is an existing order or agreement, a parent that wishes to relocate must give notice to the other parent and if that parent objects, the court will have to determine whether relocation should be permitted under the Family Law Act or the Divorce Act.

The factors the court considers in determining whether relocation should be permitted depend on whether the parties have equal or unequal parenting time. If both parties share parenting time equally, the parent that wishes to relocate must demonstrate that the desire to move is in good faith, that there are reasonable arrangements in place to preserve the children’s existing relationships with the other parent and that the move is in the children’s best interest. If the parents do not have equal time, the parent who wishes to move must demonstrate the desire to move is in good faith and that there are reasonable arrangements in place to preserve the existing relationship with the other parent. The parent opposing the relocation must then prove the move is not in the children’s best interest.

Relocation proceedings can be extremely difficult for courts to decide and Apna Law’s Vancouver and Burnaby family lawyers can help ensure that your best case is presented to the court.

If you have received inheritance or a significant gift from a family member, the Family Law Act already provides some protection for these as they are considered “excluded property” and not divided on separation.

Section 85 of the Family Law Act, has a list of property that is excluded from family property and includes:

• Property acquired by one of the spouses before the relationship began
• Inheritances
• Gifts to a spouse from a third party or family party
• A settlement or an award of damages to a spouse for compensation for injury (unless it is awarded for income loss)
• Money paid under an insurance policy (unless it is awarded for income loss)
• Any of the property above that is held in trust for a spouse
• A spouse’s beneficial interest in property held in a discretionary trust
• Property derived from the disposition of the above property.

Although these items are not considered family property, the increase in value in any of these is considered family property that must be divided equally. The spouse who claims property is excluded has the onus of proving with documentary evidence that the property is excluded. Apna Law’s Vancouver and Burnaby family lawyers are well versed in the law that applies to excluded property and will work to protect your property.