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Sarah MillerLawyerIf you were married in British Columbia, you can order an original marriage certificate through BC Vital Statistics: https://ecos.vs.gov.bc.ca/ecos/begin.do
According to the government’s website, it costs $27 to order a marriage certificate. It may cost more if you require a rush delivery.
If you weren’t married in BC and it isn’t that easy for you to obtain a new marriage certificate, there are a few ways around this:
- You can file a Notice of Family Claim seeking everything you want except for a divorce (your original marriage certificate is only required if you are seeking a divorce). Then, hopefully, your spouse will file the original marriage certificate with a Counterclaim seeking divorce. Then you can file a Response to Counterclaim and confirm that you consent to the divorce.
- There is an option in the Notice of Family Claim to file the Claim seeking divorce without the marriage certificate if it is impossible for you to get it or if you confirm that you will be able to file it before scheduling a trial in which divorce is being sought. Unfortunately, however, the courts have never approved this in my experience – even if the client was married in another country and it will be difficult, if not impossible, for him/her to get another original.
If it is impossible to obtain another original and you can prove your efforts, you or a lawyer may need to appear before a judge to request an exemption. Hopefully it will not get to this point for you, but if it does, don’t hesitate to get in touch.
Oct 31, 2023 at 12:54 PM in reply to: How is someone’s income calculated if they’re self-employed? #1530Sarah MillerLawyerA “Guideline Income” is the income someone has for the purpose of calculating child support (under the Child Support Guidelines) or spousal support (under the Spousal Support Advisory Guidelines).
It can be challenging to calculate a fair “Guidelines Income” for someone who is self-employed. This is because self-employed individuals are entitled to deduct legitimate business expenses from their incomes. However, for the purpose of calculating his or her support obligations, some legitimate deductions may be added back to the person’s income if he or she received a personal benefit from the business expense.
If either party owns a corporation, a Guideline Income Report may be required to accurately determine the amount of income available to that person, because owners of corporations often pay themselves less than they could in an effort to minimize their income taxes. Guideline Income Reports tend to range from $3,000 to $15,000, but they can be a necessary resource if the parties are unable to reach an agreement about a party’s income.
Guideline Income Reports are typically prepared by accountants who hold the designation of Chartered Business Valuator (“CBV”), and who are familiar with the Federal Child Support Guidelines and Spousal Support Advisory Guidelines. CBVs must adhere to the Canadian Institute of Chartered Business Valuators’ Standard No. 310 “Expert Reports” which requires CBVs to list the scope of review, explain the rationale of the approach taken, and list the assumptions used and the procedures followed to determine the reasonableness and appropriateness of key assumptions. This can result in a higher quality report that is more likely to withstand judicial scrutiny.
CBVs are also used to addressing issues such as fair market compensation and the reasonableness of expenses, as these adjustments are often made in valuation reports. Some CBVs have received additional training in litigation support and basic principles in dispute resolution. In addition to a CBV designation, it can also be helpful if the accountant also holds a Chartered Professional Accountant (“CPA”) designation, as not all CBVs are accountants. Accountants are usually familiar with the Income Tax Act rules governing the deduction of expenses. While those rules are not determinative with respect to the calculation of a person’s guideline income, they can serve as an important starting point in order to spot irregular expenses.
Lastly, it is common for the income of self-employed individuals to fluctuate. If a party’s income fluctuates, it may be appropriate to average that person’s income over the last three years.
Sarah MillerLawyerSection 7 Expenses (or “special or extraordinary expenses”) are significant expenses that are considered to be necessary for the child’s well-being. These expenses are often shared between the parents in proportion to their respective incomes.
Some common examples of section 7 expenses include:
(1) Childcare expenses: This includes costs associated with daycare, after-school programs, or babysitting services required for the child’s care when the custodial parent is working or attending school.
(2) Medical and dental expenses: Section 7 may cover expenses for prescription medications, orthodontic treatments, therapy sessions, or other necessary medical or dental care not covered by insurance.
(3) Health insurance premiums: If the custodial parent pays for private health insurance coverage for the child, the non-custodial parent may be responsible for contributing to the premium payments.
(4) Extraordinary educational expenses: This category includes expenses related to private school tuition, tutoring, or specialized education programs that are deemed necessary for the child’s education.
(5) Extracurricular activities: Costs associated with the child’s participation in extracurricular activities, such as sports, music lessons, art classes, or summer camps, may qualify as section 7 expenses.
(6) Post-secondary education expenses: If the child is pursuing higher education, section 7 expenses may include tuition fees, textbooks, living expenses, and other related costs.
Oct 31, 2023 at 12:38 PM in reply to: What can I do if my spouse is intentionally unemployed or underemployed? #1528Sarah MillerLawyerA person’s income may be imputed if he or she is intentionally unemployed or intentionally underemployed. Here are some important things to consider:
A person’s income may be imputed if he or she is the:
(a) payor of child support (including parents with an obligation to contribute towards the child’s special or extraordinary expenses),
(b) payor of spousal support, or
(c) recipient of spousal support.The requirement that the under/unemployment is “intentional” does not mean that the other person needs to show that the person is acting in bad faith. For example, income may be imputed to you if you quit your job to pursue hobbies, even if you are not making this choice to intentionally reduce your support obligations (or increase the other’s support obligations). A person can be acting in good faith and still have their income imputed.
If you want the court to impute income to your former spouse, you will need to demonstrate to the court that your spouse is capable of earning more. It is then your spouse’s responsibility to convince the court that income should not be imputed. For example, your former spouse might be able to demonstrate that he or she is attending school and has reasonable career goals. Your former spouse may also be able to prove that he or she is not capable of earning as much as they used to because of medical reasons, including disability due to physical or mental health issues.
Pursuant to the relevant case law, courts will consider the following principles when determining whether to impute income to parents with a child support obligation:
(1) There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he or she is unemployed and does not intend to seek work, or that his potential to earn income is an irrelevant factor.”
(2) When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
(3) A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
(4) Persistence in unremunerative employment may entitle the court to impute income.
(5) A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
(6) As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
Sarah MillerLawyerBefore filing an application, you will need to choose which court to go to. Sometimes people have one action in Provincial Court and another action in Supreme Court at the same time. Choosing the right court can save you time and money.
Self-represented parties should generally use the Provincial Court whenever possible. This is because you can often get in front of a judge more quickly, the Provincial Court Rules are less complicated, there are fewer forms and procedural requirements, and you won’t have to compensate the other person for his or her legal fees if you make a mistake or lose your application.
PROVINCIAL COURT
All of the Provincial Court Family forms can be found here.
You can file your application in Provincial Court if you are seeking orders regarding child support, parenting arrangements or parental responsibilities (decision-making authority), spousal support, or a family protection order.
If you proceed in Provincial Court, you will most likely want to file the following forms:
(1) Application (Application About a Family Law Matter OR Application About a Priority Parenting Matter. If you are only seeking child support, you will likely want to file the Application About a Family Law Matter)
(2) Affidavit
(3) Financial Statement (Required if you may have an obligation to pay child support or share the child(ren)’s Section 7 Expenses, or if you are seeking or being asked to pay spousal support)(1) Application About a Family Law Matter
Family law matters include:
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Parenting arrangements: The term “custody” is no longer used in the Family Law Act and Divorce Act. “Parenting arrangements” include guardianship; parental responsibilities (decision-making authority); and the parenting time that each guardian spends with a child. Parental responsibilities may be shared or exercised separately. The courts do not make orders regarding parenting arrangements based on what is “fair” to the parents. The only thing the court will consider in making orders regarding your parenting arrangements is what is in the best interest of the child.
Child support – this includes monthly child support and special or extraordinary expenses (“Section 7 Expenses”). Section 7 Expenses may include child care, medical care, extracurricular activities, and other significant expenses that are reasonable, necessary, and significant. A child has the right to be supported by both parents, whether or not the parents ever lived together or the parent has ever lived with the child.
Contact with a child: Contact time refers to the time a child spends with someone who is not their guardian. This person could include a parent who is not a guardian to a child, or other people, like grandparents, elders, aunts and uncles, or a family friend.
Guardianship of a child: Only guardians have parental responsibilities and parenting time with a child. An agreement or order about parenting arrangements can say a child’s guardians share parental responsibilities or parenting time. Or it can say one guardian is responsible for more of the parenting decisions and has more of the parenting time with the child.
Spousal support – money that one spouse pays to another spouse for their financial support after separation. A spouse that seeks spousal support will need to establish entitlement. After entitlement is established, the court will consider the Spousal Support Advisory Guidelines when making an order for spousal support.(2) Affidavit
Use this form to explain the facts that you want to present to the court when you apply for an order. You can attach Exhibits (such as photos or screenshots) to substantiate your claims. You will need to swear your Affidavit under oath or affirm it to be true. A lawyer, notary public, or commissioner for taking affidavits usually needs to witness your signature, but you might be able to file it with the court unsworn.
You will need to file a Financial Statement in the following circumstances:
(a) you have a child support obligation
(b) there is split or shared parenting time
(c) there is a child 19 years old or over for whom support is being applied for
(d) a party has been acting as a parent to a child of the other party
(e) the paying parent earns more than $150,000 per year
(f) there is an application for special or extraordinary expenses for a child
(g) you are claiming undue hardship
(h) you or your spouse are seeking spousal supportIf you must file a Financial Statement but cannot complete it yet, you can apply to the court to file your application first using the Application for Case Management Order Without Notice or Attendance.
Note that you will need to attach proof of your income, such as your three most recent income tax returns, three most recent notices of assessment, and additional documents, which vary based on the source(s) of your income.
SUPREME COURT
You will need to go to Supreme Court to seek orders regarding property division (including pension division), debt division, or divorce. Any application that can be filed in Provincial Court can also be filed in Supreme Court.
All of the Supreme Court Family forms can be found here.
The first step is filing your Notice of Family Claim.
We strongly recommend that you seek legal advice before filing a Notice of Family Claim. If one of the orders you need is an order for divorce, see this forum topic regarding divorce proceedings.
(2) Judicial Case Conference (“JCC”)
Unless a urgent order is required, the second step is to schedule a Judicial Case Conference (“JCC”). See this forum topic to learn more about JCCs.
Whoever schedules the JCC will need to serve a Notice of Judicial Case Conference on the other party.
After you attend the JCC, you will be able to file a Notice of Application. This form tells the judge what you want ordered; the factual basis/background information; the legal basis; and the material that you will rely on.
You will need to file a Financial Statement if you are being asked to pay child support, or if you want the other party to share the children’s special or extraordinary expenses (“Section 7 Expenses”). This is because Section 7 Expenses are usually divided by the parents in proportion to their incomes, so the judge will need to know the incomes of both parents.
If you are seeking spousal support, or being asking to pay spousal support, both you and your spouse will need to file a financial statement.
If you or the other party are seeking the division of property or debts, you will both need to file a financial statement.
Note that you will need to attach proof of your income, such as your three most recent income tax returns, three most recent notices of assessment, and additional documents, which vary based on the source(s) of your income.
Sarah MillerLawyerMed-arb is a combination of mediation and arbitration.
Med-arb is a wise choice if you and your spouse are far apart on some issues, but you want to attempt to work together in reaching an agreement. Arbitration ensures that all issues will be resolved in the event that mediation is unsuccessful.
Although mediators and arbitrators generally charge hourly rates between $300 – $500, med-arb is a cost-effective alternative to a trial, which usually costs tens of thousands of dollars for each party. Court is unpredictable and delays are common. Med-arb provides parties with more privacy and control over how their personal disputes are resolved. To learn more, read our blog, Is Med-Arb Right For Me?
Sarah MillerLawyerIf you’ve received a Notice of Relocation about the proposed relocation of your former spouse and/or your child, and you do not agree with the plan, you can use this form to object to the relocation: Objection to Relocation form.
You cannot object to a relocation if 1) the person who provided notice of relocation is relocating without the child(ren) or 2) you have contact with the child(ren) under a contact order. However, you may want to consider whether your parenting or contact order will need to be changed.
For more information about relocations, including how to object to a proposed relocation, please consult the Canadian government’s fact sheet: Moving after separation or divorce?
Objection Rules and Requirements:
Important note: Under the Divorce Act, parents must try to work out issues involving their children, including a child’s possible relocation, by using out-of-court family dispute resolution processes such as negotiation and mediation, unless it would not be appropriate. It is generally better for parents to come up with their own solution, as they know your children best. A judge may make a decision that one or both parents do not like. Even if one parent objects to the relocation, it is important to keep trying to come to an agreement, where appropriate.
You can object to a proposed relocation of your child(ren) if you have a Divorce Act order giving you parenting responsibilities (parenting time or decision-making authority) for them.
There are two ways to object to a proposed relocation of child:
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- you can send the person who is proposing the relocation an Objection to Relocation using the form above; OR
- you can apply to the court for an order to stop the relocation
If you plan to object to the relocation, you must do so within 30 days after the day on which you received the Notice of Relocation.
If you do not make your objection within 30 days, and there is no current court order saying the move cannot happen, the relocation can go ahead without a court order on or after the date indicated in the Notice of Relocation.
If you decide to object by filling out this form (rather than by making a court application), it is important that you are able to show that 1) you provided your objection to the person proposing the relocation within 30 days and 2) they actually received it.If no objection is made within 30 days and there is no court order stopping the relocation, the relocation can go ahead on the date in the Notice of Relocation. If you do go to court, the judge will want to see proof that you followed the requirements for objecting.
As long as you do it in writing, there are several ways that you can provide your objection:
- Email: If you send the objection form by email, you may be able to use the “read receipt” function in your email program. You can also ask the person to send you an email confirming they have received it. If you don’t get an email confirming they have received it, then you may want to provide your objection by another method.
- Registered mail or courier: A person working at a post office can tell you how to send a document with proof that it has been delivered. Courier services also offer options for tracking delivery. If you can’t get proof of delivery, then you may want to provide your objection by another method.
- In person: You can deliver the objection in person and keep a record of the date, time and address, along with the name of the person you gave the objection to. It is a good idea to have someone come with you and be a witness.If you are not comfortable delivering it yourself in person, you could ask someone else to deliver it for you and keep a record of the delivery details, such as the date, time and address, along with how they know the person they gave the notice to.
- You can also use a process server to deliver the objection. A process server is someone you can pay to give documents to another person, and they will provide you with proof that they delivered the documents. If you search online for “process server” and the name of your community, you will find the contact information for your local process servers.
The way you choose to send your objection may depend on your relationship with the person who needs to get it. For example, if you are worried about being able to show a court that you provided your objection, you might want to consider using a formal process that is used for serving court documents, such as sending the objection through a process server.
Objection to Relocation – Form Instructions:
Part A – Information about the Person Objecting to the Relocation
- You must provide current and accurate information unless a judge orders that you are not required to do so.
Part B – Information about the objection to the relocation
- Provide the name of the person who gave the Notice of Relocation and the date you received the Notice of Relocation.
- Provide the names of the child(ren) whose relocation you are objecting to. Do not include the names of other children if you are not objecting to their relocation.
Part C – Reasons for the objection
- Provide your reasons for objecting to the relocation.
Part D – Views on proposal for changes to parenting arrangements and/or contact arrangements
- Explain your views on the proposal to change parenting arrangements and/or contact arrangements in the Notice of Relocation. You may want to suggest alternative arrangements, but you are not required to do so.Under the Divorce Act, parents must try to work out issues involving their children, including a child’s possible relocation, by using out-of-court family dispute resolution processes such as negotiation and mediation, unless it would not be appropriate. It is generally better for parents to come up with their own solution, as they know their children best. A judge may make a decision that one or both parents do not like. Even if a parent objects to the relocation, it is important to keep trying to come to an agreement, where appropriate.
Sarah MillerLawyerIf you are a parent or have court-ordered “contact” with a child, you need to provide notice to the other parent (and/or others with court-ordered contact) if your move is likely to affect the child’s relationships with you or others in a significant way.
Parents:
When you have a court order under the Divorce Act for parenting responsibilities for a child (which means that you have an order for parenting time or decision-making authority), you will have to give formal notice of your move if it is likely to affect the child’s relationships with you or others in a significant way. A relocation generally means the parenting time schedule for the child will no longer work because of the move.
Notice of Relocation Form: Click here to download the Canadian government’s Notice of Relocation Form for parents.
Note: You need to give notice if you are planning to move 1) with your child or 2) away from your child.
Others with Court-Ordered Contact:
If you have a Divorce Act order granting you contact with a child under a contact order, you will also have to provide notice of your move if it is likely to affect the child’s relationships with you or others in a significant way.
Notice of Relocation Form: Click here to download the Canadian government’s Notice of Relocation Form for people with a contact order under the Divorce Act.
Exceptions:
There are some situations in which giving notice might not be appropriate or safe; for example, if there is a risk of family violence. A court can make an order that says that you don’t have to give notice, or the court can make orders to modify your requirements.
For more information about the notice requirements under the Divorce Act, please consult the Canadian government’s fact sheet here: Moving after separation or divorce?
Notice Rules and Requirements:
You must give notice to everyone who has a Divorce Act order giving them:
- parenting responsibilities for your child(ren) (custody, access, parenting time or decision-making) or
- contact with your child(ren) under a contact order (contact orders may be made for someone other than a spouse or former spouse, such as a grandparent).
You must provide notice to them at least 60 days before the date you expect to relocate.
If you are planning to relocate your child(ren), anyone with parenting responsibilities for your child(ren) can object to the move. They can object by either 1) completing an Objection to Relocation form or 2) applying to a court. They have to object within 30 days of receiving your notice.
A person with a contact order cannot object to your child(ren)’s relocation.
If you receive an Objection to Relocation form or a court application opposing the relocation has been filed, you cannot relocate the child(ren) until a court makes an order allowing the move.
If you do not receive an objection to the relocation of your child(ren) within 30 days after giving your notice, you may go ahead with the move on or after the date you indicated in your notice, as long as there is no court order saying the move cannot happen.
If you are relocating without your child(ren), you still have to provide the same notice, but no one can object to your relocation.
You can use the same form for more than one child.
You can complete one form to send to everyone entitled to notice or a separate form for each person.
It is a good idea to attach a copy of your most recent parenting order to your notice. This will help to make sure everyone has the same information about current parenting arrangements. If the most recent parenting order does not reflect your child(ren)’s current schedule, you may also want to attach a description of their current schedule.
It is important that you be able to show that 1) you provided the notice to everyone who is entitled to notice and 2) they actually received it.Remember, a person with parenting responsibilities can object to a child’s relocation up to 30 days after receiving the notice, so it is important to know when they received it. Also, if you go to court, the judge will want to see proof that you followed all of the requirements for providing notice. When a judge is deciding whether to allow a child’s relocation, one of the things they have to consider is whether you met all the notice requirements.As long as you do it in writing, there are many ways that you can give notice:
- Email: If you send the notice by email, you may be able to use the “read receipt” function in your email program. You can also ask the person to send you an email confirming they have received it. If you don’t get an email confirming they have received it, then you may want to give notice by another method.
- Registered mail or courier: A person working at a post office can tell you how to send a document with proof that it has been delivered. Courier services also offer options for tracking deliveries. If you can’t get proof of delivery, then you may want to give notice by another method.
- In person: You can deliver the notice in person and keep a record of the date, time and address, along with the name of the person you gave the notice to. It is a good idea to have someone come with you and be a witness.If you are not comfortable delivering it yourself in person, you could ask someone else to deliver it for you and keep a record of the delivery details, such as the date, time and address, along with how they know the person they gave the notice to.
- You can also use a process server to deliver the notice. A process server is someone you can pay to give documents to another person, and they will provide you with proof that they delivered the documents. If you search online for “process server” and the name of your community, you will find the contact information for local process servers.
The way you choose to give notice may depend on your relationships with the people who need to get it. For example, if you are worried about being able to show a court that you gave notice, you might want to consider using a formal process that is used for serving court documents, such as sending the notice through a process server.
Notice of Relocation – Form Instructions:
Part A – Information about the Person Giving Notice
- You must provide current and accurate information unless a judge orders that you are not required to do so.
Part B – Information about the relocation
- Make sure to select only one box.
- Provide the name(s) of any child(ren) for whom you have parenting responsibilities under a Divorce Act order (custody, access, parenting time or decision-making) and indicate whether you are planning to relocate them. If you need to provide the names of more than four children, you can put their names and whether you are planning to relocate them in the text box.
- Provide as much detail about the new address and contact information as you can at this time.
Part C – Names of the people who are receiving this Notice of Relocation
- You must provide this notice to everyone who has a Divorce Act order for parenting responsibilities for your child(ren) (custody, access, parenting time or decision-making responsibility) or contact under a contact order. You can use the same form for everyone or separate forms for each person. However, you need to include the names of all people who will be receiving notice on each form.
Part D – Proposal to change parenting arrangements and/or contact arrangements
- Provide a proposal for how parenting time, decision-making responsibility and/or contact could be exercised if the relocation takes place. Some of the things you may want to include are:
<ul class=”lst-spcd”> - Will the current parenting time schedule need to change after the move? If so, what is your proposal for a new parenting time schedule?
- If someone has contact under a contact order, will the contact schedule need to change? If so, what is your proposal for a new contact schedule?
- Will the child(ren) need to travel to spend time with you or anyone else who has parenting time or a contact order? If so, how will they travel? What would the estimated travel costs be? Who will cover the travel costs? Will the child(ren) need to be accompanied? Who will accompany the child(ren) and who will cover those costs? Who will make the travel arrangements?
- Are there other ways parenting time or contact could happen after the move, for example by phone or electronic communication?
Important note: Under the Divorce Act, parents must try to work out issues involving their children, including a child’s possible relocation, by using out-of-court family dispute resolution processes such as negotiation and mediation, unless it would not be appropriate. It is generally better for parents to come up with their own solution, as they know their children best. A judge may make a decision that one or both parents do not like. Even if one parent objects to the relocation, it is important to keep trying to come to an agreement, where appropriate.
Part F – Attachments
- Indicate whether you attached the following to your notice. These attachments are optional.
- A copy of a court order
- A description of the child(ren)’s current schedule (on a separate page)
- Other
Sarah MillerLawyerA very simple desk order divorce will generally costs around $1,000.00 – $1,500.00 from start to finish, but the cost varies from lawyer to lawyer and depends on several factors, for example:
- If you and your spouse require a Separation Agreement, it will generally cost an additional $1,500 – $2,500 to prepare the Agreement.
- If you and your spouse are able to file a Separation Agreement with your Notice of Family Claim, the filing fee for your Notice of Family Claim reduces from approx. $200 to approx. $30.00.
- If you or your spouse have not paid child support pursuant to the Federal Child Support Guidelines, or if you’ve reached an agreement that child support will not be paid pursuant to the Federal Child Support Guidelines, your desk order divorce is likely to be rejected and a lawyer may need to appear before a judge to request the divorce.
Jul 03, 2023 at 5:12 PM in reply to: How can I calculate my or my spouse’s support obligations? #1341Sarah MillerLawyerYou can calculate the appropriate amount of child support and spousal support with a child support and spousal support calculator available online. However, spousal support is much more complicated and nuanced than child support. It is best to meet with a lawyer before filing an application for spousal support or agreeing to pay spousal support.
The spousal support calculator will tell you how much spousal support is payable, but before determining how much spousal support is payable, you must determine whether spousal support is payable. Spousal support is not automatically required simply because the calculation recommends an amount. See Am I entitled to spousal support?
After entitlement to spousal support is established, the next step in calculating spousal support is determining what each spouse’s income is. Determining what someone’s income is may be as simple as referring to line 150 in each spouse’s income tax return or notice of assessment. However, there are several factors that may complicate the calculation, for example:
- Income may be imputed to someone who is intentionally underemployed or unemployed if that person is capable of earning more.
- Union dues may be deducted from someone’s Line 150 income.
- Self-employed individuals are entitled to deduct legitimate business expenses from their incomes, but some expenses deducted in an income tax return may be added back to the person’s income if he or she received a personal benefit from the expense.
- If either party owns a corporation, a Guideline Income Report may be required to accurately determine the amount of income available to that person, because owners of corporations often pay themselves less than they could in an effort to minimize their income taxes.
- Non-recurring income (such as a one-time bonus; capital gains from the sale of a property; or an RRSP withdrawal to pay legal fees) may be deducted from a party’s income.
- If a party’s income fluctuates, it may be appropriate to average that person’s income over the last three years.
After determining what both spouse’s incomes are, the next step is calculating the range of spousal support recommended by the Federal Spousal Support Advisory Guidelines. Unlike the Child Support Guidelines (which provides a set amount of child support required), the Spousal Support Advisory Guidelines provide a recommended range of spousal support.
The courts consider many factors when deciding whether to order spousal support at the low, mid, or high end of the range. Support may be ordered in an amount at the high end of the range but for a duration at the low end of the range, and vice versa. Many people mistakenly believe that the fairest way to calculate support is to default to the mid-point, but the courts have made it clear that this is not appropriate. Quantum (the amount) and duration of spousal support is determined on a case by case basis. It might be ordered for a set duration or for an indefinite duration, subject to review. Sometimes lump sum payments are preferable, but lump sum payments are rarely ordered unless both parties prefer a lump sum payment, as opposed to monthly payments.
Tax Considerations:
Monthly spousal support payments are tax deductible for the payor and must be included as taxable income on the recipient’s income tax returns. Lump-sum payments are not taxable for the recipient and can’t be deducted on the payor’s income tax returns. This is an important factor to consider before agreeing to pay or accept a one-time lump sum amount of spousal support.
Contact us for a free 30-minute consultation if you still have questions about how to calculate spousal support.
Sarah MillerLawyerWhile a Separation Agreement may not be required to obtain a divorce, it is strongly encouraged. A judge will not grant a desk order divorce if there are outstanding issues regarding child support or arrears. Parents are not at liberty to “waive” child support because it is considered the right of the child. If you need a divorce but there are unresolved issues regarding child support, you or a lawyer will likely need to go to court and convince a judge that the children are financially looked after and the divorce should be granted.
Getting a divorce does not immediately result in all issues being settled. You and your spouse have two years after the date of divorce to seek orders regarding property and debt division or spousal support.
Signing a separation agreement also makes a divorce cheaper. Rather than paying $200 to file your Notice of Family Claim, you will pay up to $30.
With that said, if you had a short marriage and your divorce is very simple and non-contentious, a Separation Agreement is not required to get a divorce.
For more information, see What is the First Step to Getting Divorced?
Sarah MillerLawyerThe law regarding “pet custody” is evolving in British Columbia. Recent and significant changes to the Family Law Act have affected the way family pets are treated during a divorce or separation.
Pets have been historically been handled by the courts like property. In at least one case, a judge ordered the parties to reach an agreement about who would keep a dog, and if they couldn’t agree, the judge threatened to order the sale of the dog and for the parties to equally split the sale proceeds (if any).
Property issues can only be dealt with in the Supreme Court of BC, so parties were not permitted to seek orders regarding pets in Provincial Court. Now that pets are no longer considered “property,” issues regarding pets can be dealt with in Provincial Court.
Most people who have ever had a pet understand that a pets can’t be compared to a couch or a TV. Pets are loved like members of the family, and some people have drafted detailed “custody agreements” regarding pets. These agreements were previously quite difficult to enforce in the court in the event of a dispute.
The proposed amendments to the Family Law Act in British Columbia result in pets being considered more like children than a personal possession (or “chattel”). The legislation will refer to pets as “companion animals.”
The courts will consider several factors when determining how to handle a dispute over a family pet. These factors include:
- The circumstances in which the companion animal was acquired.
- The extent to which each spouse cared for the companion animal.
- Any history of family violence.
- The risk of family violence.
- A spouse’s cruelty, or threat of cruelty, toward an animal.
- The relationship that a child has with the companion animal.
- The willingness and ability of each spouse to care for the basic needs of the companion animal.
- Any other circumstances the court considers relevant.
These factors will be considered by the courts in making decisions about pet custody, allowing for a more nuanced and pet-centric approach to resolving disputes.
If you and your spouse have children who are also very close with your pet, we generally recommend that the pet is transferred between the parents during exchanges of the children, so that the children can enjoy the company of the pet, regardless of which parent they are staying with. This can be particularly important if your children are emotionally fragile and struggling with their parents’ separation.
Sarah MillerLawyerA parenting coordinator is useful for parents who would otherwise find themselves in court repeatedly seeking orders regarding relatively trivial disputes. Some parents simply cannot resolve any disputes amongst themselves and a parenting coordinator can act as a mediator-arbitrator. They will first attempt to facilitate an agreement (like a mediator) and if that doesn’t work, the parenting coordinator can make a binding determination (like an arbitrator).
The Parenting Coordinator cannot not make determinations in respect of:
- a change to the guardianship of a child;
- a change in the allocation of parental responsibilities;
- giving parenting time or contact with a child to a person who does not have parenting time or contact with the child;
- a substantial change to the parenting time or contact with a child;
- the relocation of a child,
- any matters excluded by the Parenting Coordinator Retainer Agreement, or by court order; or
- that which would affect the division or possession of property, or the division of family assets.
The Parenting Coordinator may provide any of the following services:
- assist with the implementation, maintenance and monitoring of an agreement, order or written decision concerning children (“Parenting Plan”);
- settle anticipated or actual conflicts in children’s scheduling;
- clarify and resolve different interpretations of or ambiguities in a Parenting Plan, and develop new provisions to address situations that were not anticipated;
- monitor children’s adjustment to a Parenting Plan;
- facilitate children’s relationship with each Parent;
- assist the parents in communicating more effectively with one another;
- facilitate the exchange of information about child(ren) and their routines;
- assist the parents in developing provisions for the transport of clothing, equipment, toys and personal possessions between the parents’ households;
- assist the parents in resolving disputes between them respecting parenting responsibilities; and
- any additional services that the parents may agree to in writing, subject to the limitations outline above.
The Parenting Coordinator may consult, meet with, or obtain information from third parties, including the parents’ lawyers, family members, third-party caregivers, teachers, counsellors, therapists, and health care professionals.
The Parenting Coordinator’s decisions in the determination-making process are binding upon the parents but subject to review by the Court. The Parenting Coordinator will deliver to the parents a written, signed statement of all determinations, including the reasons and basis for the determination.
Parenting coordinators are expensive, but it is wiser to invest in one person who can make decisions rather than both people paying their own lawyers to repeatedly go to court.
Jun 15, 2023 at 9:31 AM in reply to: What’s the difference between custody, guardianship, and parenting time? #1212Sarah MillerLawyerThere are so many different legal terms used when discussing parenting arrangements and it can become very confusing. The following definitions may help:
Guardianship: A guardian has the legal rights of a parent. Parents are generally guardians and courts rarely terminate a parent’s guardianship unless that parent has never cared for the child and is unlikely to care for the child in the future. Biological parents are at liberty to reach agreements about whether one or both of the parents are guardians, but they are not at liberty to make an agreement about a third party being a guardian, except in the following circumstances:
(a) by adoption, under the Adoption Act;
(b) temporary or permanent guardianship orders made in child protection cases, pursuant to the Child, Family and Community Service Act;
(c) the appointment of a standby guardian in a will by a guardian who has passed away or is facing terminal illness or permanent mental incapacity (see Sections 53 – 57 of the BC Family Law Act;
For example, if you are separating from your spouse, you cannot include a clause in your Separation Agreement that your former spouse is a guardian of your children from a previous relationship. A step-parent cannot become a guardian through a written agreement. The step-parent would need to adopt the child or obtain an order for guardianship.
Only a guardian can have “parental responsibilities” or “parenting time” with a child. All other non-guardians (such as grandparents and step-parents) can have “contact” with the child.
Parenting Time: Parents generally have parenting time pursuant to a schedule after separation. If both parents have the child(ren) at least 40% of the time (at least 3 days per week, 12 days per month, or 146 days per year), then they have a shared parenting arrangement. If one of the parents has the child(ren) more than 60% of the time, then that parent has “primary care” of the child(ren).
Custody: Although some lawyers and judges continue to use the word “custody,” the new Divorce Act has removed this term from the legislation. When one thinks of “custody,” many people immediately think about a “custody battle” or “winning custody.” The term “custody” was removed from the Divorce Act to emphasize the best interests of children over the “battle” than many parents have over them. The Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term “parenting order” replaces “custody order” throughout the Divorce Act.
Parental Responsibilities under the BC Family Law Act:
Parental responsibilities refer to a parent’s ability to make parental decisions. The types of decisions parents can make are listed under s. 41 of the Family Law Act. A court may order: (1) shared parental responsibilities; (2) that one of the parents has sole parental responsibilities; (3) that the parents have shared parental responsibilities but one of the parents has the final say in the event of a dispute; or (4) that the parents must retain a parenting coordinator to resolve disputes regarding parental decisions.
Decision-making Under the Divorce Act (Canada):
This is essentially the same thing as parental responsibilities. Decision-making responsibilities refer to a parent’s authority and responsibility for making significant decisions about a child’s well-being, including in decisions related to the child’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
Sarah MillerLawyerParenting time and parental decision-making are often the most contentious issues to resolve after a separation. These issues are rarely black and white and involve subjective interpretations about what is best for the children involved. When making an order regarding children, the court can only consider the best interests of the children. The court will not make a parenting order with the goal of punishing a parent or rewarding the other. Likewise, the court cannot consider what is “fair” to the parties, and there is no presumption that any particular arrangement is in a child’s best interest.
In making an order regarding children, a court may consider a person’s conduct only if it substantially affects one of the factors listed below, and only to the extent that it affects that factor.
Factors under the s. 37 of the Family Law Act:
To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered. The following factors are listed under Section 37 of the Family Law Act:
(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;
(g) 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;
(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.
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.
Factors under the s. 16 of the Divorce Act:
s. 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.</div>
s. 16 (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.
s. 16 (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, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) 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
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence:
s. 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.
s. 16(5): In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child:
s. 16(6): In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
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