Family Law: Divorce | Child Support | Child Custody | Marriage/Spousal Agreements | Separation Agreements | Spousal Support | Division of Property | Mediation
At Acumen Law, we offer compassionate and dedicated representation in family disputes, in court and throughout the mediation process. The breakdown of a relationship can be confusing and extremely stressful. Dealing with emotional turmoil, while also trying to navigate through the complex rules that govern family law disputes, is not easy.
Our focus is on helping you achieve the solutions that work best for your family. Whether you are contemplating divorce, separation or facing a child custody battle, the family lawyers at Acumen Law can provide you with the legal expertise necessary to find a successful resolution to your dispute.
We seek to resolve family disputes in the most efficient way possible for you. This may involve settlement negotiations or going to court. In the event litigation is necessary, the family lawyers at Acumen Law will guide you through the process and help you protect yourself, your children and your rights.
Divorces are governed by the Divorce Act of Canada and in the province of British Columbia, are dealt with by the Supreme Court of British Columbia. To obtain a divorce, at least one, if not both, of the spouses must apply in court on the basis that there was a breakdown of the marriage. There are conditions that must be met. In Canada, there are two ways to establish a breakdown of marriage. The first involves spouses who are separated, and have been for at least one year before a divorce is granted by the court.
The second way to establish a breakdown of marriage is to allege adultery or abuse. These allegations require that the spouse against whom the divorce is proceeding has, during the marriage, committed adultery or abused the other spouse in some manner.
When it comes to family law, there are generally two types of divorces, contested or uncontested.
In divorce proceedings, there is a requirement that the other spouse be notified and given opportunity to oppose the granting of a divorce. Uncontested divorces occur when one spouse in the relationship files an application for divorce that is unanswered by the other spouse, or agreed to by the other spouse. They are generally less time-consuming and complex than contested divorces.
A contested divorce occurs where one of the spouses opposes the terms of the divorce. The spouse contesting the divorce may have an issue with how family property is divided upon divorce, how child custody will work, or whether child support or spousal support ought to be provided by one of the parties. Typically, a divorce is contested not because a spouse does not want to breakdown the marriage, but rather due to disagreements over the terms of the divorce, though of course there are exceptions.
If you are considering divorce, the family law lawyers at Acumen Law can guide you through the process and ensure your rights are protected. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
Child support payments in Canada are set out depending on how much the non-custodial parent earns. There are two methods to obtaining child support. The first is through a separation agreement outlining which parent will retain custody of the children and which parent will make child support payments. This agreement will also set out how much these payments will be and when they are to be paid. This option requires the cooperation of the other spouse. However, where cooperation is impossible the court may order one spouse to pay child support, determining the amount based on the income of the non-custodial spouse. When you obtain such an order it can, and should be, registered with the Family Maintenance Enforcement Program to ensure compliance.
Disputes can occur where the spouse paying child support does not pay and falls into “arrears” of child support. When this occurs, an application to the court can be made to try to obtain that money. There are many reasons why someone may not pay child support that is due. Perhaps they are unaware of their obligations, or suddenly come across new financial challenges that limits their ability to pay. Where this occurs, the party required to pay can negotiate to reduce their arrears or agree to a payment plan that is acceptable to all parties.
Dispute may also occur when the parent paying child support begins earning a higher or lower income than the income used to determine the amount of child support. There is a duty on the party paying child support to notify the custodial parent of any changes to their financial situation. However, this notification does not always take place. Where the parent paying child support experiences a change in their income, either parent may make an application to the court to vary the amount of child support. This may result in either a reduction or an increase in the amount of child support to be paid.
Disputes in child support payments are most likely to occur when a couple separates. Separation involves changes to the financial and living situations of both parents, and the children involved. Child support is the right of the child and exists to ensure the best interests of the child. But these interests are balanced with the practicalities of the financial situation of the parent paying child support. At Acumen Law our family law lawyers understand this and can help you protect your interests and that of your children. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
The most important issue when considering child custody matters is who has principal custody of the child. In other words, which parent will the child primarily live with. When determining custody, the only concern for the courts is the best interests of the child. As such, in child custody cases, decisions are made with the goal of ensuring the physical, psychological and emotional safety, health, security and well-being of the child.
Along with child support, custody is one of the first things to consider upon separation. Custody can be obtained by way of a separation agreement or through court proceedings. Where the courts are asked to decide custody, they must do so with regards to the best interests of the child. The courts must consider all of the child’s circumstances and needs, including some of the following factors:
- The child’s health, security and emotional well-being;
- The wishes of the child, if appropriate to consider them;
- The mental and physical health of the parties seeking custody;
- The nature of the relationship between the child and the people in the child’s life;
- The ability of each person seeking custody to exercise his or her responsibilities providing care for the child;
- Any special needs the child may have and the ability of the parents to take care of those needs;
- Continuation of a stable home environment;
- Support and opportunity to interact with members of the extended family;
- The school and community where the child is to reside;
- The age and sex of the child;
- Whether there is a pattern of family violence in the home that would jeopardize the safety, security and well-being of the child;
- Civil or criminal proceedings that are relevant the safety, security and well-being of the child; and
- Any evidence of use of drugs, alcohol or child abuse.
In some cases, affidavits and character witnesses may also be used to establish how fit a parent is to care for the child. The court may consider evidence from the child’s teachers, evidence from other children or people who have lived with the parent, or friends.
Custody may be granted to one parent (sole custody) or to both parents (joint custody). Even where sole custody is granted, the non-custodial parent is still entitled to make inquiries and obtain information about the health, education and welfare of the child. The non-custodial parent may, through agreement or by way of court order, can have contact with the child, the terms of which can vary.
Disputes over custody can occur where one parent believes the other is not fit to care for the child and should have no contact, or supervised contact with the child. Other disputes may involve situations where one parent wishes to have more parenting time and thus desires joint custody. Other challenges can appear when one of the parents decides to move. For example, if one parent in a joint custody relationship must move, joint custody may no longer be possible due to physical distances between the parents. The courts resolve this by looking at the best interests of the child.
When child custody matters become contentious it is important not to lose sight of the best interests of your children. The family law lawyers at Acumen Law can help you navigate any custody issues keeping your child’s and your best interests in mind. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
Marriage can have significant implications for each person in the relationship, and many choose to obtain a marriage or spousal agreement prior to being wedded to protect their personal interests. There are many reasons why someone may want a marriage agreement.
Perhaps one party in the relationship owns a significant number of assets that they do not wish to form part of the marital assets. Or perhaps the asset is the family resident, but one party in the relationship had contributed significantly more to its purchase. In these cases, a marriage agreement can help prevent future problems by establishing a division of property prior to marriage.
However, marriage agreements must also be fair. This is governed by the Family Law Act, and states that agreements must consider factors such as the duration of the marriage, how long the spouses lived together, when property was acquired, whether one spouse received the property as inheritance or gift, whether each spouse will be economically self-sufficient after the split, among other circumstances. Generally, what the courts will do is apply the agreement with respect to each party’s circumstances after separation, and then assess the factors based on two questions:
When the marriage or spousal agreement was made, was the circumstance of how each party would be affected by the separation contemplated?
If so, were adequate arrangements made in response to the anticipated circumstances?
Fairness is an important issue in marriage and spousal agreements. The law recognizes that often one member of the household may be the financial breadwinner, while the other may earn little to no income, but be responsible for other duties such as household management and childrearing. If the marriage or spousal agreement is not fair, or no proper legal advice was provided, the courts can make a determination on how assets should be divided. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
Any time a couple separates, how two formerly intertwined lives will be split becomes an issue that must be resolved. Separation agreements are one way of doing this. These agreements can cover everything from child custody, spousal support, property division, to child support, among other issues. These agreements are meant to facilitate separation and arrange how things will work moving forward.
Separation agreements have been recognized by the courts to be agreements, with some degree of formality, that are made during or after a marital separation, concerning issues related to property division, custody, access, spousal support and child support. Separation agreements do not have to be written, and can be enforceable even if they just involved a verbal exchange. However, a written agreement proves that an agreement exists in the first place. If the agreement is every challenged or changed, a written agreement provides a clear starting point. So a properly drafted agreement helps protect your interests now and in the future.
Separation agreements may be challenged for their validity or terms may be varied on application to the court. For example, validity can be challenged on allegations of duress. In other words, one of the parties that signed the agreement may claim that the other party pressured or forced them to sign. It is very important to obtain proper legal advice when considering a separation agreement to protect yourself and the validity of the agreement.
Terms of the agreement may be varied by the courts based whether the terms are fair. This is determined either by the Divorce Act or the Family Law Act depending on the issue in question. There are different considerations about what is “fair” where the term involves child support, child custody, spousal support or property division. For example, in relation to children, what is “fair” depends on the best interests of the child.
Before signing a separation agreement, it is crucial to consult a family lawyer, who will be able to identify whether the agreement is fair to your interests. Failing to do so could result in the court upholding a separation agreement that puts you at a disadvantage. The family law lawyers at Acumen Law can help. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
Spousal support recognizes the potential disparity between the incomes of both spouses prior to separation. These cases recognize that one spouse may have been financially supporting the other during the course of the relationship, and assigns spousal support to assist the partner with the lower income. The amount of spousal support determined by the court may be calculated based on past earnings of the financially dominant partner, along with an assessment of what that person is likely to be making in the future.
There are obligations on both parties with respect to spousal support. The person who is receiving the spousal support is expected to make reasonable steps to obtain employment and become economically self-sufficient. Spousal support orders can be limited by time, in that the courts may give the recipient of the spousal support a period of time to become self-sufficient. The person who is paying the spousal support, has an obligation to notify the other party if their financial circumstances.
When assigning spousal support, the courts are tasked with considering the financial means and needs of both spouses, the length of the marriage, the roles of each spouse during the marriage, how those roles have changed since separation, who cares for the children, and whether a spouse receiving support is attempting to be self-sufficient. Spousal support recognizes that one of its intentions is to provide compensation for the spouse who sacrificed earning ability during the marriage, and to ensure that no party is left in financial need if the other has means to pay.
To obtain spousal support, you will either need an agreement signed by both parties or a court order. Whether you are seeking to obtain spousal support or you are in a position that spousal support amounts must recalculated, the family law lawyers at Acumen Law are here to help. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
Division of Property
Property is divided is a family law case based on whether the property is considered “family property” or “excluded property” under the Family Law Act.
Under the Family Law Act family property is property that is owned by at least one spouse or a beneficial interest of at least one spouse in property on the date of separation. Family property can also include property that a spouse acquires after separation that is derived from family property owned at the time of separation. Family property includes the following:
- any real or personal property;
- share or interest in a corporation;
- a stake in a business;
- property owed to a spouse;
- refunds, including income tax refunds;
- money in bank accounts;
- RRSPs; and
- any increases in value of property that was obtained before the marriage.
On separation, each spouse is entitled to an undivided half of all family property and debt. Disputes can occur over whether certain property is considered family property or should be excluded from equal division. The Family Law Act defines excluded property, that is property not considered to be family property and not subject to equal division. Excluded property includes any property that was acquired by one spouse before the relationship began, inheritances, gifts from a third party, compensation for injury, compensation under an insurance policy and money placed in trust. It is up to the party claiming a certain property is excluded to show why it should be excluded. However, excluded property could still be divided evenly if the court finds it would be significantly unfair to proceed with unequal division.
Another issue is the value of the property. The Family Law Act stipulates that the value of any family property or debt must be determined, by fair market value, on either the day of the court proceeding or on the date of an out-of-court agreement over the division of property. This is important, particularly when it involves property such as real estate, because such property can significantly appreciate or depreciate after the date of separation.
The division of property between a couple is rarely easy and can involve significant calculations, valuations and negotiations. Property division can become even more complex where the property in question concerns ownership in businesses, trust accounts, multiple bank accounts, pensions, or multiple real estate properties. At Acumen Law, our family law lawyers can guide you through this process and work to get you a fair division of your assets. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).
Though court is always an option, most family law matters can be resolved in mediation. With the help of a lawyer protecting you and your family’s best interests, mediation can be an effective tool in ensuring the best outcome without involving a drawn-out and expensive court process.
In most family cases, there is a degree of familiarity among the parties involved. Often, what is required to resolve the dispute is a medium where negotiation can take place in a calm and reasoned manner. In any family case, mediation should be the first step.
Mediation is a process where the parties attend a meeting with a mediator. The mediator is a neutral third party who guides the parties to come to a consensus on various family law issues. This takes frank and honest discussions to come to a fair resolution to issues concerning children, spousal support and even property division. Parties should seek legal advice throughout the mediation process.
Mediation is way to avoid the financial and emotional expense of divorce litigation. If mediation is something you would like to try to resolve your matter, the family law lawyers at Acumen Law can help.