All posts by Seeger Law

MYTH: “Upon separation, all assets are divided 50/50.”

MYTH: “Upon separation, all assets are divided 50/50.”

FACT: While the Family Law Act provides for a prima facie (on the face of it) equal division of assets and family debt at paragraph 81, this equal division is qualified by the words “subject to an agreement or order otherwise”.  This contemplates a variety of scenarios where an equal division would not occur including, but not limited to the following scenarios:

  1. The parties entered into an agreement (either a cohabitation agreement at the start of the relationship or a separation agreement at the end of the relationship) that provided for an unequal division of assets;
  2. There are excluded assets as defined under s.85 of the Family Law Act that go back to the person who originally owned them and are not included in the property split at all;
  3. The courts made an order under section 95 of the Family Law Act for an unequal division of assets after considering facts such as:

The length of the relationship;
The financial contributions of either party;
The non-financial contributions of either party, including as homemaker and/or primary carer of the children;
The future earnings of the parties;
Who will have primary care of the children moving forward
Any health issues of either party, or the children.

4. The parties agree to an unequal division of assets to satisfy lump sum spousal support.

Every circumstance is unique and in order to know what your rights are, it is important for each party to obtain independent legal advice at an early stage. If you have any questions Seeger Law is here to help 778 478 1168

MYTH: “If I leave the family home after separation, I will not be entitled to my share in that property.”

MYTH: “If I leave the family home after separation, I will not be entitled to my share in that property.” OR “if I’m not registered on title to the family home, I cannot make a claim to the family home”
FACT: There is no requirement that you must stay in the family home in order to maintain a financial interest in the property, we do not operate on “possession is 9/10ths of the law”. Our legislation defines family property as “all real and personal property on the date that the spouses separate that is owned by at least one spouse or that at least one spouse has a beneficial interest in”.  This means that if both spouses are on title to the home but one has moved out for any reason, the home is still family property.  It also means that if only one partner is registered on title, the home is still family property.  When parties separate, the situation is often volatile.  It may make sense for everyone’s comfort and safety that one party move out.  Rest assured that such a decision is not considered abandonment of your interest.  Make a decision about who lives where based upon considerations of how to reduce conflict.

If you have questions about your situation, please, never hesitate to give us a call 778 478 1168

Who needs a will? You do!

Who needs a will? Anyone with kids, with assets, who is over 19 …. Pretty much all of you out there!

Who has a will?  …… radio silence …

Even though I am a lawyer and practice in the area of wills and estates, I didn’t have a will for the longest time (bad lawyer!!).  I thought about this often and realized that while I can chat about estate planning and the importance of appointing a guardian for your kids and pets, when it actually came to facing my own immortality …. I choked!

I do have a will now, but the process got me thinking about how many people speak to me and say “oh yes, I need a will”, but it always get put to the end of “the list”.  Which is ironic because “the list” is usually made up of items that increase our wealth, look after our children and generally look after all of the things we need to protect both in life and death.  So having a will should be at the top of that list!!

A couple of interesting points about wills for you to mull over:

1.       British Columbia does not recognize holograph wills (except in very, very specific cases – and if you are not dying on the battlefield, you don’t fit into the circumstances!) so writing on a piece of paper that “I leave all my worldly goods to Skip the dog” just doesn’t cut it in British Columbia.

2.       If you use beneficiary designations on life insurance / RRSPs and other investment products, they do not go through your estate at your death and you do not pay probate fees on the value of these items.

3.       A will is automatically revoked upon marriage.

4.       Divorce revokes only the parts of your will that provides a gift or benefit to your ex.  Now many of us are happy of this by the time the divorce comes through … but if there is no one who is to get those gifts / benefits in place of your ex … where do they go?

5.       In British Columbia we have a statute called the “Wills Variation Act”.  It is a very old statute and the bane of many, however it creates a lot of work for lawyers.  The basic premise is that if you do not provide for a person to whom you owe an obligation (read: children and spouses – including estranged but not divorced spouses), those people can bring an action in Supreme Court for a portion of your estate.  It’s a pain and it’s specific to British Columbia, but if you are considering leaving out a child or in the process of getting divorced – see a lawyer to discuss how to protect your estate.

6.       If you make a direct gift to a minor child in your will (as opposed to creating a trust for the minor), the Public Guardian and Trustee will step in and manage that trust until the child turns of age.  The Public Guardian and Trustee is a government agency that is overworked and understaffed – your minor child’s trust will be managed at a cost and will be invested in accordance with the very specific rules set down by the PGT.  There is no discretion, there is limited flexibility and someone will be dealing with the government every time they want to use some of that gift.

7.       Finally, if you leave money to a disabled adult or child directly (as opposed to setting up a disability trust), you could actually cause them to lose some or all of their disability income.

So now that you are thinking of this, don’t put it at the end of the list – call us and set up an appointment to get this process going!!

Co-parenting? Summer break is almost here.

Well everyone, summer is on the way! Temperatures are heating up and soon the rattle of school buses down our city streets will come to a halt. Summer vacation is right around the corner & many of us will be taking to the sky and roads for some much needed vacation time! If you and your ex are sharing custody, please make sure that you have your summer parenting time schedule in place and any consents to travel are signed and ready to go. Customs officers are putting heavy importance on making sure that children aren’t entering and leaving the country without the consent of both parents these days. The last thing you would want is your family vacation to be spoiled by such an avoidable circumstance!

If you need some advice, or wish to revisit your custody arrangement never hesitate to  give us a call 🙂

Click here for info & consent forms to travel. 

Full time legal assistant position

We are looking for a new legal assistant to join our team.We are a small firm focusing on family law, corporate law and also wills & estates.

The purpose of this position is to provide full clerical, administrative and general office duties to meet the needs of the firm and clients.

This is full time position and wage will be competitive and based on experience.

Thank you for your interest in Seeger Law, we will be contacting persons of interest only.

Applications can be sent to seeger@seegerlaw.ca

Obtaining access to a non-biological child

In 2013 our family legislation was completely overhauled.  This is relevant because the legislation we were using  – the Family Relations Act – originated in a time when the nuclear family was the norm.  Therefore any breakdowns of family were dealt with in light of two biological parents deciding to split up and dealing with questions around what to do with the children of these biological parents.

 However, this isn’t always our reality currently and hasn’t been so for a long time.  We see more and more blended families where a non-biological parent takes on the roles of a parent to a child or step grandparents enjoy being grandma and grandpa to nonbiological grandchildren.   In many instances, this relationship is just as meaningful to the child and is painful for the child to loose if the relationship breaks down.  Our new legislation – the Family Law Act – has provisions to ensure that just because you aren’t the biological parent of a child does not mean that you loose all rights to continue to see that child and be in that child’s life.

 Section 58 to 60 of the new Family Law Act contemplates contact with a child and the ways to ensure that a person continues to have a relationship with the child after a relationship breaks down.  In fact, the phrase “contact” is used in relation to all parties with whom the child has a significant relationship that are not guardians.  This concept is new and essentially “codifies” the right of a child to continue to have a meaningful relationship with a person who is not their biological parent.   This would include people like step parents and grand parents.

 What the act provides for is parties entering into agreements allowing non guardians to have time with a child and, in the event that the parties can’t agree, the court can make a decision providing for non guardians to have time with a child.  As with all considerations of time with a child, the court will consider what amount and type of time is in the best interests of the child when coming up with an appropriate amount of contact for a person and the child.

 What is important to remember is that the focus now is on how to ensure that all meaningful relationships that the child had prior to the breakdown of the relationship are continued as long as they are in the best interests of the child.  This is as a result of a focused effort to ensure that non biological parents of children are still able to continue to have time and a relationship with a child with whom they have spent a lot of time with after a relationship breaks down.  The basic goal is to avoid parents from punishing non biological parents or grand parents for perceived slights by stopping them having time with a child.

 Remember this basic rule and you will be fine: a child is not a pawn to be used to punish another person with.  Children do not ask to get divorced and most importantly, they have a right to know that no matter how the new family dynamic may look, the maximum number of people still love them and want to spend time with them.  That is our job as adults.  And if you are unable to do it between yourselves, rest assured that the courts will do it for you.

If you need need help never hesitate to get in touch.  We are here to help.

4 Ways to Support Your Child’s Adjustment to Co-Parenting

The initial step to becoming a competent co-parent is to put your child’s needs ahead of your own. Research shows that children who had close to equal time with both parents grew up to have higher self-esteem and fewer trust issues. Even if your parenting time agreement specifies a 70/30 time split between homes, for example, consider balancing it out for the long-term psychological well-being of your children.

Your child can benefit from your guidance, as he/she doesn’t have the wisdom, insight, and clarity to make decisions about spending time with both parents. Try to encourage your child to spend time with their other parent. Kids are sensitive to body language and unkind words, so make sure your tone and words are positive or neutral when discussing your ex-spouse with or in front of your child.

Help Your Child Transition Between Homes

Moving from one house to another can be stressful for a child after their parents’ divorce. At times, a child may balk at the prospect of leaving one home and spending time with their other parent. This doesn’t mean your child loves the other parent any less or wouldn’t ultimately benefit from spending more time with him or her. Instead, the reticence to transition is a natural response of a child who is seeking security.

It’s crucial that you and your ex create a schedule that lessens the likelihood that your child will experience divided loyalties because they may feel like they have to choose sides. When both parents work together to determine schools, activities, social calendars and all the other aspects of the child’s life, it fosters a cohesive daily experience for the child, no matter whose house they are at on a given day.

The key to helping your child feel secure is to help them anticipate the transitions between their two homes. Remind kids ahead of time that they will be spending time at their other home. You can even ask the other parent if they’ve made certain plans for the child, so you can say, “Mommy is planning on taking you to church Sunday” or “Daddy is helping at your school on Thursday.” This helps your child anticipate the change and gives them something to look forward to at their other home. Attempt to show genuine enthusiasm about their visit with their other parent, just as you do when you take a child to kindergarten or when you deliver kids for a week at grandma’s house.

Loyalty Conflicts

Even though children don’t cause their parents’ divorce, kids often feel responsible for their parents’ happiness. In some cases, they might side with one parent against the other parent, which can cause alienation or even estrangement. In What About the Kids? Judith Wallerstein cautions us that a serious problem exists when a child and a parent of either sex joins forces in an alignment against the other parent’s lifestyle, values or identity.

Modeling cooperation and polite behavior sets a positive tone for co-parenting. One of the many ways to avoid alienation is to recognize that your ex is your child’s parent and deserves respect for that reason alone. If your child hears you express doubts about the other parent, it can have a detrimental impact on them emotionally because they will feel that they are in the middle.

4 Ways to Encourage Your Child to Spend Time with Both Parents

  1. Remind your kids a few days before the transition that they will be spending time with their other parent (if they are under the age of ten). This helps them anticipate the change and gives them an opportunity to adapt.
  2. Attempt to set routines for daily life at each home. Try to discuss this with your ex to maintain consistency in both houses if possible for mealtimes, bedtimes, etc.
  3. Plan ahead and help your child pack so they are bringing important possessions with them to the other home.
  4. Don’t bad-mouth your ex. If your child hears you make negative comments about him or her, it can have a detrimental impact on them. Promote a positive bong between your ex and your child. Put your differences with your ex aside and show some interest in what they do together. For example, you could say, “I hope you had fun skating with your dad.”

Finally, be sure to focus on rebuilding your own life and not any negative feelings you have toward your ex-spouse. While you may be still grieving your divorce, keeping your differences with your ex away from your child will open up opportunities for him or her to heal from your divorce.

In the years to come, how do you want your child to remember you? It’s possible to hinder your child’s development by holding onto past grievances toward your ex-partner. By providing loving encouragement or being neutral about the other parent, you can help make adjusting to post-divorce life easier for your children. When children are confident of the love of both of their parents, they have an easier time adjusting to their parents’ divorce.

Story via ~ www.divorcemag.com

An introduction to divorce

Are you considering divorce, or have you recently been served divorce papers? If so, then let us clarify a few things for you. From contested to uncontested, this post will help you to understand the valid grounds for filing a divorce in Canada

The Act of Getting a Divorce in Canada

When a marriage is over the only way to legally end your relationship is to be granted a divorce. In Canada it is not required that both parties want their marriage to end in order for a divorce to be granted. It is only necessary that one party prove that the marriage has broken down and can not be repaired. The process of proving that a marriage has broken down is quite often referred to as “Grounds for Divorce”. We will explain the valid grounds for divorce in Canada, further down this page.

Throughout Canada every divorce is governed by the Federal Divorce Act. However, each province will vary on the specific documents and procedures used for their individual jurisdiction. This is just one of the reasons that it is best to contact a lawyer focusing on family law, when seeking a separation or divorce. A local lawyer will be familiar with the Family Law Act and all of the procedures in your province or jurisdiction. They will review your personal circumstances and then explain all of your obligations during a divorce, as well as ensure your rights are fully protected.

Types of Divorce

In Canada there are two types of Divorce; a Contested Divorce and an Uncontested Divorce.

Contested Divorce: In a Contested Divorce spouses do not agree. Their disagreements can be about the divorce itself, or about the terms of the divorce. (Terms such as: custody, access, support and property/debt division.) In a contested divorce lawyers must be retained and the courts must intervene.

Uncontested Divorce: In an Uncontested Divorce both spouses do agree and have signed a separation agreement to resolve all issues surrounding their Divorce. Issues such as: custody, access, support, property/debt division etc. Also, both parties want to proceed with ending their relationship and agree to the Divorce itself.

In most cases Uncontested Divorces proceed faster and are much less stressful and costly then Contested Divorce.

Grounds for Divorce in Canada

Under the Divorce Act there is only one valid reason for a divorce and that is “Marriage break down” It is necessary that at least one party prove that the marriage has broken down and can not be repaired. Currently there are three acceptable grounds which are used to prove this breakdown.

They are:

  • Adultery – One or both partners committed adultery by having sex with someone else during their marriage. After the adultery had occurred, and was discovered, the act was not forgiven, or the couple did not live together for more the 90 days.
  • Abuse/Cruelty – Your spouse has been physically or mentally cruel and/or abusive to you.
  • Separation – A period of no less then one full year has passed where you and your spouse have lived separate lives.

Who can apply for a Divorce in Canada?

In order to apply for a Divorce in Canada you must meet the following criteria:

  • You were legally married. This can be in Canada or in any other country;
  • Either or both of you have lived in a Canadian province, or territory, for at least one year immediately before applying for a Divorce
  • You intend to separate permanently from your spouse and believe that there is no chance you will get back together, or you have already left your spouse and do not intend to get back together.

What is your next step?

If you are considering a divorce, or if you have been served with divorce papers, it is always best to speak with a lawyer. We will review your case, guide you through the entire process and ensure your rights are fully protected.

This is what happens if you don’t pay your child support

We have an enforcement agency in British Columbia called Family Maintenance and Enforcement Program (FMEP).  There are similar agencies in other provinces.  They are purely an enforcement agency though, so you need to register any court order or separation agreement you have with them.

They then take over collecting child support or spousal support payments.  If you do not pay, then the arrears accrue.  At a certain amount, they put a hold on your driver’s licence.  They can also garnish wages, federal or provincial payments to the payor (so income tax returns, gst payments).  They also put a hold on a person’s passport.  Finally, if all of this doesn’t work – there is a mechanism whereby the payor can be sent to jail.  I’ve been in court when that has happened – the payor isn’t very happy!  This obviously is the most onerous of penalties and only ever done if all other avenues have not worked.

 I describe them as a guard dog.  They do exactly what they are told to do and nothing more or less.  So they go in accordance with the terms of a court order or a separation agreement.  Unless both parties agree to change the terms of a court order or agreement, FMEP have no authority to change the terms of what they are enforcing.  So – if a person’s income goes down and the payee refuses to agree to a reduction in child support, you have to go to court to get an order decreasing child support.  Note that while this process is happening, FMEP are still enforcing and arrears are still accumulating.  For a payor, they are a monkey on their back.  For a payee they are a very effective method of ensuring that support is paid.

If you have any questions, never hesitate to get in touch, we are here to help 🙂

New year, new will.

Who needs a will? Anyone with kids, with assets, who is over 19 …. Pretty much all of you out there!

Who has a will?  …… radio silence …

Even though I am a lawyer and practice in the area of wills and estates, I didn’t have a will for the longest time (bad lawyer!!).  I thought about this often and realized that while I can chat about estate planning and the importance of appointing a guardian for your kids and pets, when it actually came to facing my own immortality … I choked!

I do have a will now, but the process got me thinking about how many people speak to me and say “oh yes, I need a will”, but it always get put to the end of “the list”.  Which is ironic because “the list” is usually made up of items that increase our wealth, look after our children and generally look after all of the things we need to protect both in life and death.  So having a will should be at the top of that list!!

A couple of interesting points about wills for you to mull over:

1.       British Columbia does not recognize holograph wills (except in very, very specific cases – and if you are not on the front lines in Afghanistan, you don’t fit into the circumstances!) so writing on a piece of paper that “I leave all my worldly goods to Skip the dog” just doesn’t cut it in British Columbia.

2.       If you use beneficiary designations on life insurance / RRSPs and other investment products, they do not go through your estate at your death and you do not pay probate fees on the value of these items.

3.       A will is automatically revoked upon marriage.

4.       Divorce revokes only the parts of your will that provides a gift or benefit to your ex.  Now many of us are happy of this by the time the divorce comes through … but if there is no one who is to get those gifts / benefits in place of your ex … where do they go?

5.       In British Columbia we have a statute called the “Wills Variation Act”.  It is a very old statute and the bane of many, however it creates a lot of work for lawyers.  The basic premise is that if you do not provide for a person to whom you owe an obligation (read: children and spouses – including estranged but not divorced spouses), those people can bring an action in Supreme Court for a portion of your estate.  It’s a pain and it’s specific to British Columbia, but if you are considering leaving out a child or in the process of getting divorced – see a lawyer to discuss how to protect your estate.

6.       If you make a direct gift to a minor child in your will (as opposed to creating a trust for the minor), the Public Guardian and Trustee will step in and manage that trust until the child turns of age.  The Public Guardian and Trustee is a government agency that is overworked and understaffed – your minor child’s trust will be managed at a cost and will be invested in accordance with the very specific rules set down by the PGT.  There is no discretion, there is limited flexibility and someone will be dealing with the government every time they want to use some of that gift.

7.       Finally, if you leave money to a disabled adult or child directly (as opposed to setting up a disability trust), you could actually cause them to lose some or all of their disability income.

So now that you are thinking of this, don’t put it at the end of the list – call us and set up an appointment to get this process going!!