Category Archives: Updates

Are you considering separating from your spouse?

If so, below are some important facts and information regarding separations. We will clarify a few common misconceptions about separations and then help you to understand exactly what a Separation Agreement is and what it needs to cover.

First, there really is no such thing as filing for ‘legal separation’ in Canada. You are legally separated as soon as you and your spouse are ‘living separate and apart’. However, the term ‘legal separation’ is commonly used to describe the contract that is created between two spouses at the time of their separation.

Second, there is no time limit to being separated, and a divorce will never automatically occur after or because of a separation. In fact, you can remain indefinitely separated from your spouse without ever filing for divorce. The only legal reason to obtain a divorce is if one partner wishes to remarry.

In order to file for divorce in Canada you must first complete a full one year separation period. The only exception to this rule is if your divorce is filed under the grounds of adultery or cruelty.

One Year Separation Period

As noted above, there are no time limits to a separation in Canada. However, if you are using separation as grounds for your divorce, then you must be separated from your spouse for a minimum of one full year. You can begin the application process for divorce the day that you are separate, but the courts will not grant you your divorce until the full year has passed.

If during this one year separation period you and your spouse get back together, this reconciliation will not affect your one year separation period unless you are back together for a period, or multiple periods, equaling more than 90 days. The purpose of this law is to allow couples a chance to try and work on repairing their marriage, without delaying a divorce in the event that their attempts are not successful. If you do indeed reconcile for a period of or exceeding 90 days and then separate again, you will be required to begin a new full one year separation period before a divorce can be granted.

Lastly, being separated from your spouse does not always mean that you must be living at separate addresses. Being separated means that you and your spouse must be living separate lives. From the courts perspective living at separate address is the easiest way to prove this. In the event that separate addresses are not possible (due to finances, children, etc.) you may reside at the same address as your spouse, and still be separated. In this type of situation the court will require that the couple prove that while they were dwelling at the same address they no longer lived as a couple. This can be complicated and usually requires legal representation.

What is a Separation Agreement?

A separation agreement is a legally binding contract created between two spouses, at the time of their separation. This contract sets out each party’s rights on issues such as: child custody/access, property, debts and child/spousal support. The law leaves the decision about having a written separation agreement up to each individual couple. However, it is always strongly recommended as it can be very hard to prove any verbal agreements made by a couple, in a court of law.

Ideally, it is best to have a separation agreement drafted by a lawyer. It is not a rule that a separation agreement must be drafted by a lawyer, and couples are entitled to draft their own agreements. Should you choose to create your own separation agreement it is important to check all your provincial requirements so that you know how to successfully write an agreement which will be binding and enforceable by the courts. It can be very difficult and costly to fight for unclear written agreements in court, should one spouse stop respecting the terms of your arrangement.

Drafting your Separation Agreement

There are many issues that need to be considered when creating a separation agreement. Separation agreements are treated seriously by the courts and any terms that are clearly unreasonable will not be accepted. It is important to note that judges will not usually change any property divisions or spousal support terms agreed to in writing, even if it is something they wouldn’t have set themselves. Due to this, it is important that you are fully educated about all your legal rights and are completely comfortable and confident before signing a separation agreement.

In the event that you and your spouse cannot agree on some or all of the items in a separation agreement, you can contact a mediator or retain separate lawyers in order to help you resolve your differences.

Via ~ www.divorce-canada.ca

Parenting rights for LGBT & how the Family Law Act applies

The Family Law Act (FLA) contemplates a variety of ways that people can be parents.  There was a lot of work put into this part of the FLA and it had a lot of input from the LGBT community.  The goal of the FLA is to contemplate a variety of parenting arrangements and provide for parenting ‘rights’ for all people involved in a child’s life – regardless of how they come to be involved.

Part 3 of the FLA is where to begin when considering who is a parent of a child.  Part 3 provides a wide variety of scenarios where a person can be the parent of a child – whether that child is born through assisted reproduction (during the life and death of either of the donors), through adoption and through surrogacy. The FLA also captures the non-donor partner in a lesbian or gay couple (where one partner has either donated the sperm or the egg) as a parent in the wording of the various definitions of a parent.

Interestingly enough, Part 3 starts at paragraph 20, however parentage as the result of a traditional relationship is not contemplated until paragraph 26!!!  I think this is an interesting reflection on the different realities of parenting  in our society today.

Determining who a parent is under the FLA is very important because only parents are guardians of minor children.  This is important because only guardians of a child can have parenting time with a child and exercise parenting responsibilities with regards to a child.  Section 41 of the FLA details what parenting responsibilities are (this is not an exhaustive list – they never are!).  Parenting responsibilities including making the day to day decisions about where the child lives, who the child lives with, making medical decisions relating to the child, applying for a passport for the child etc.

So, to break it down – in order to have a say in the day to day decisions of the child that you have with your partner (same sex, common law – whatever), you need to be a guardian.  In order to be a guardian, you need to be a parent.  So … the rights of anyone, whether they are in a traditional heterosexual relationship, whether they are in a homosexual relationship or whether they are the surrogate of a baby can all be determined by figuring out first if you qualify as a parent under part 3 of the FLA.  There are no different rights afforded to heterosexual couples under the FLA and the goal of the FLA was to be more inclusive of all parents, regardless of what their relationship with the child’s other parent looked like.

Upon the breakdown of a relationship under the FLA, parental rights are the same regardless of what the relationship looked like.  If you are a parent of a child – you are the guardian of that child and therefore have a right to parenting time and the exercise of parenting responsibilities.  Here’s hoping that this affords everyone who has a relationship breakdown the same protections and rights to continue their relationship with their children.

Paule Seeger B.A. LLB

Do You Have a Plan for Your Digital Assets When You Die?

If you were to die tomorrow, your family would likely go through your possessions in an effort to organize and distribute them to various family members or friends. Collecting your physical assets would be a relatively straightforward, albeit daunting, task; they would probably start in one room and work their way through to other areas of the house. But what would they—or could they—do about your digital assets?

So much of what we do now takes place online. Between e-books, iTunes music libraries, Bitcoin accounts, and Dropbox folders containing decades’ worth of photos, videos, and documents (not to mention social media accounts such as Facebook, Twitter, and Instagram), many of us have probably accumulated a sizeable online presence or “digital estate”.

In fact, a 2011 global survey conducted by computer security software company McAfee revealed that Canadian users place an average value of $47,000 (USD) on the “digital assets” they own across multiple digital devices. With the exponential proliferation of technology and social media in the last few years, I suspect this number would be significantly higher today.

Now imagine that your family could not legally access any of those digital assets.

The Law of the Land

Unfortunately, there is no legislation in Canada that allows family members or even the executor of an estate to gain access to digital assets on behalf of a deceased person. The law in this area simply has not caught up to the state of modern technology and the blurred lines between our physical and online worlds.

This means the policies of individual service providers will determine how families can access their deceased loved ones’ accounts (if they can access them at all). Keep in mind that all of the online accounts we use are governed by the Terms of Use of that particular service provider. We don’t own our online accounts; we simply have a license to use them. So, without uniform legislation on right of access upon death, your family members are left to the mercy of the service providers, which all have different polices on what happens to your account when you die.

So What Can You Do?

Continue reading here…… Story via Ava Aslani, Essentia Law Kelowna

Divorce, separation & the family pet

A few years ago my articled student, Marta, had (and still has) a dog.  His name is Tito.  He was my office dog.  Every morning when I’d come up the stairs, he’s there waiting for me.  When we have our morning meeting, he would be on the table supervising.  So when Marta had to go to Vancouver to take her bar exam course, there was joking in the office that we would need an access arrangement in place for Tito.  Funnily enough, when they both left, it took me weeks to stop looking for him at the top of our stairs.  I think I felt his absence more keenly than I had expected.

I’m an animal lover, let me make that clear.  My house is a Noah’s Ark and there are definitely times when I could say – hand on heart – that I love my animals as much as (if not more than) my two children.  Sorry kids!  I have two dogs at home who have been part of my life for over 9 years.  They were the turning point in my first divorce.  When noises were made that they may leave with the ex, the gloves came off.  So I get it. I understand the love for an animal and the love that you get back.  It is unlike that of your children in as much as they don’t talk back, wreck your car, eat all of your groceries, argue with their siblings and yell “I hate you” as they storm out of the room.  They are different.

And the way the courts in Canada treat animals on the break down of a relationship is different from the way they treat children.  There are no inherent rights to parenting time or contact with the family dog when parties break down.  Not because the courts don’t recognize the love and bonds that develop between people and their animals but because the courts do not have the jurisdiction to make those types of decisions.  Courts treat animals as property – they have jurisdiction to make a finding of ownership of a pet, but they cannot find that two parties own a pet and then make an access order to that pet.  Not because they don’t empathize.  Not because they are heartless.  But because the courts are bound by the rules of court and law and our law doesn’t treat animals the same way that they treat humans.

I struggled with this post, because I know what I would do if someone tried to take my animals. But I also agree with the courts that Family court judges should not be in the business of making parenting time / custody / access orders to pets.  They are busy enough as it is.

Resolving an access schedule for Buster is not an issue for a judge. This is something that two people should try very hard to resolve themselves – either personally or with a third party like a mediator.  Remember, you both decided to give Buster a good home and lots of love, just because you have decided to separate doesn’t mean that he can suddenly become an item of property to be fought over.  However if you go to court, that’s how the courts will treat him.  Just something to think about

Paule Seeger, B.A. LLB

What happens in Vegas … doesn’t always stay in Vegas!

A few years ago, a lovely young man contacted me in a bit of a bind.  He was engaged to the girl of his dreams and planning a big wedding.  Only problem was that he had already gotten married in Vegas to a friend of his a few years prior!

He called me to find out if the Vegas marriage was valid – since they were drunk and never lived together afterwards – because he really didn’t want to have to break the news to his fiancé that he was already “kinda” married.

After asking him a few questions and establishing that he did in fact get legally married in Vegas, it became clear that the hard reality was that his marriage to his friend in Vegas was considered a valid marriage in Canada.  I wish I could have told the young man something different, but – whether or not it is Elvis, the captain of a ship, or a person who was ordained over the internet – if they are qualified to perform marriages in the location you are getting married in …. You. Are. Married.

Some countries require the marriage to be registered in their jurisdiction in order for the marriage to be recognized in their jurisdiction.  Canada is not one of these jurisdictions.  A marriage is recognized as long as you meet the requirements of the jurisdiction in which you got married … and unfortunately dumb and drunk are not bars to marriage in Vegas … or so I’ve been told.

Because he had married his friend but never lived with her (or consummated the marriage according to him) our unfortunate friend would have been able to have the marriage annulled if he had made an application within a small window of time.  However it had been well over two years by the time he contacted us, so annulment was not an option.

In these situations, we can complete a quick divorce for you, provided you have a marriage certificate and you can still locate your “spouse”.  These types of divorces are usually uncontested and called “desk order divorces” because everything is done by filing paperwork as opposed to appearing in court.

If you have a divorce where there are no outstanding issues other than getting a divorce, you can obtain one of these divorces.  The process takes about 3 – 6 months and we usually charge a flat fee for them based on whether or not there are children of the relationship.  If you find yourself in a situation like the one I mentioned above, or just want to finalize your divorce and there are no other issues to deal with – call us to discuss how we can help you obtain a desk order divorce.

Oh … and one more thing … after you get one of these divorces … you are really divorced too.  So if you plan on remarrying – you need to disclose this divorce on your next  application for a marriage licence 🙂

Demystifying the costs of hiring a lawyer

I, like many of us, have heard people sharing horror stories of how their lawyers cost a ton.  Usually I hear this before people find out that I’m a lawyer…. but sometimes after people find out what I do each day, they look to me to explain the exorbitant cost of their past legal counsel.

What I’m hoping to do here is demystify the costs of hiring a lawyer.

Lawyers cost money.  This is a known fact.  There is the overall cost of your legal representation and the hourly rate of your lawyer.  Your lawyer’s hourly rate will depend on their years of experience, their level of expertise, their location and obviously the complexity of your file.  For example, a first year call – which is a lawyer who is in their first year of practice, will cost less per hour than a five or ten year call.  However, you have to balance that against the reality that they also know less and may take a longer time to get to a given point.  A lawyer who is a specialist in a particular area (like pension benefits for example) will likely have an hourly rate higher than a general practitioner.

The overall cost of your legal representation will be the final amount that you spend to achieve your objectives.

This could be based on an hourly rate multiplied by the hours spent on your file.  If you retain a lawyer based on an hourly rate, their rate will be detailed in their retainer agreement.  Often if there are junior lawyers or experienced support staff available in the office, the  main lawyer in charge of your file may designate some work to them and bill you less for their work.  Let a lawyer know that you are agreeable to them designating some of the work to these people if possible.

There are firms that offer flat fees for certain things – for example we offer flat fees for incorporations, wills, probate applications and powers of attorneys.  These flat rates can increase if your file is more complex than normal, however this is generally discussed at the outset.

There are also areas of law where lawyers can take files on contingency.  What this means is that you pay for the disbursements (costs associated with your file – like filing fees, long distance telephone costs and medical costs) but the lawyer agrees to take their fee as a portion of your final settlement.  There are rules about what types of law can be done on contingency.  There are also rules as to how great a percentage the lawyer can charge.  If a lawyer agrees to take your file on contingency, you enter into a contingency agreement which would detail the disbursements you would be expected to pay and the percentage of the final settlement that the lawyer will take.  You can always go to the law society website or get a second opinion to determine if the percentage to be taken is reasonable.  Most contingency work is done in the areas of personal injury law.

The lawyer’s fee is not the only cost associated with hiring a lawyer though.  Often there are added expenses called disbursements.  As I stated above, these are the miscellaneous costs like filing fees, photocopying, courier fees, costs for service and other costs reasonably associated with your file.  It is always helpful to discuss these in advance with your lawyer and be sure to review their retainer agreement to see what each firm’s policy is on disbursements.   Knowing what to expect with your file will also help you get a better expectation of the disbursements you could expect.  For example, if you are embarking on an acrimonious divorce – there are probably going to be significant court filing costs in your future.  However if you are doing up a will, you will only likely have to pay about $13.50 to register the will with Vital Statistics.

Flat fee agreements can also be either inclusive or exclusive of disbursements, so be sure to discuss that with your lawyer beforehand.  Disbursements can add up if you are doing a conveyance when buying a house or incorporating a business.  Whether these costs are included in the fee could mean a difference of $400 – $500!

Hiring a lawyer is rarely cheap, however the amount of time and emotional stress saved now or in the future generally makes the decision worthwhile.  As well, no matter what I may write about costs – I still stand by my original position that the most important thing is to hire someone you like, feel you can get along with and trust.  A cut rate price will not help you if you don’t trust that you will be getting good legal advice.

Paule Seeger.

Thinking Of Divorcing? Read This First

You’re angry as hell at the spouse you thought you knew. You want to hire the meanest, toughest SOB divorce lawyer you can find and exact the retribution you deserve by going to court.

How could a judge not agree that your spouse is a complete (insert description here) and side with you on all issues? After all, you’re the one who’s being fair and reasonable, and you only want what’s in the children’s best interest, right?

In my law and mediation practice, I hear these things every day. People who once said “I do” are now saying “Screw you!” They may demonize their spouse and the mother or father of their children. They want justice in their divorce, and they think court is the way to get it. I’m here to say it’s not.

It might be shocking for a lawyer to tell you to avoid court. But there are ways to end a marriage that don’t involve a lawsuit. Instruct your lawyer to use negotiation, mediation and collaborative law instead to get divorced, arrange child custody, and resolve your issues. Here’s why.

Control – Think you’re going to win in court? Think again. The reality in divorce court is no one wins. Judges hear polar opposite perspectives and “facts” from parties and often decide somewhere between those positions. Very often both parties are equally frustrated with the judge’s decision. By walking into court, you give up any ability to control the outcome.

Cost – TV isn’t real life. The real-life court system is over-burdened and inefficient and absolutely NOTHING happens quickly. There are thousands of pending cases before yours. Count on it taking months, if not years, from start to finish and much more in attorney fees than you ever thought remotely possible.

Closure – Life is too short to spend so much time with lawyers and devote time, energy and money on the never-ending negativity you’ll experience in court. Your spouse will never agree with you on what caused your marriage to end. Instead of continuing to insist you’re right, insist on problem solving and moving on.

Children – Surely the most important reason. If you want to nearly guarantee that your children will suffer, then file that lawsuit.

By going to court, you ask a third party to decide what’s in the best interests of your kids. Judges don’t know your kids and they surely don’t love your kids. Why are you letting lawyers or judges decide on what’s in the best interests of your children?

Once the judge makes a decision, either you or your ex feel screwed or worse. Your feelings of animosity against your ex grow. Your children see, hear and feel everything that is said and just as importantly what is not, both before and after court. They may even be called upon to act as witnesses about you and your ex.

In the months and years afterwards, they’re scared to talk about the other parent for fear of disappointing you. They worry what one parent will think at the soccer field if they approach or say anything to the other parent.

These feelings carry on well into adulthood as you and your ex despise each other for years to come. Your children, even as adults, still worry about you at their graduations, their weddings, and the births of your grandkids!

Would it then surprise you to watch them repeat your behavior in their own relationships or marriage? It shouldn’t. Kids model their behavior after yours, now and later.

That’s why I urge you to find a way, through negotiation, mediation, or collaborative law, to compromise with your soon-to-be-ex and develop a solution that works for you and your kids.

Negotiation is just what it sounds like – the parties and their lawyers attempt to settle issues out of court by negotiating and problem solving. In mediation, the parties do this with the help of their lawyers and a third-party neutral person. Collaborative law is a model designed to streamline negotiation and problem-solving.

Twenty years from now, your family’s destiny may be different because you followed this advice today. Story via Huffington Post

 

Co-parenting? Summer break is almost here!

Well everyone, SPRING is here! May long weekend is officially upon us 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 have any questions, give us a call 🙂

Top 5 things to ask your (potential) divorce lawyer

While there are many things you should ask your divorce lawyer to ensure he/she is the right advocate for you…. There is often not much time to decide upon which lawyer to choose, so your gut instinct may be your best guidepost. But to help you, here are some questions you can ask that might help you determine whether or not a certain lawyer will be a good fit for you.

5. Tell me how your fees work?
Any good lawyer should be more than willing to discuss his or her fees with you. Not just what the hourly rate is, but what could make the case more expensive and how to conserve costs. While it is impossible to predict what a divorce will cost (unless it is a flat fee because it is uncontested, or the lawyer is willing to set a flat fee, or flat fees based on certain criterion), a lawyer should be able to give you a general idea of what it could cost and why. If the lawyer won’t answer this, or does not answer this to your satisfaction, maybe that’s a bad sign?

4. Do you know my spouse’s lawyer, and what do you think of him or her?
While you may think it is good to hire a lawyer who already dislikes the other side’s lawyer, this is often the opposite of what’s in your best interests. We live in a relatively small community and lawyers know and respect each other and will try to move the case along with as little friction as possible. Of course this can be difficult, given the emotional nature of divorce, but adding a layer of hostility (lawyer to lawyer hostility) on top of the potential hostility between spouses is not a good thing.

3. Do you practice in other areas of law?
There can be pros and cons you may want to consider when choosing a lawyer who handles different types of law. You may find it comforting to have a lawyer that does nothing but handle divorce every day, all day. Yes, a lawyer that does nothing but this, will technically have more experience but you may want to choose someone who can help you move forward with other elements that will need re -structuring post divorce like your will! Family law in general is unique, it’s one of the very few areas of law where the parties will often need to maintain a relationship after the case, so how the case is handled may well set the stage for the post-divorce relationship of the parties. Divorce lawyers know this and hopefully keep it in mind.

2. May I meet your staff?
Often you may be working as much with the lawyer’s staff as with the lawyer. They may be the ones notifying you of court dates, helping you gather information and getting personal information from you to help the lawyer prepare. Staff can be vital (and can save you the cost of always having to talk to the lawyer). But you need to meet, and like them. You will be sharing very personal information with them and good or bad staff can make all the difference.

1. Will I be okay?
It sounds like a silly question. But the point is to be vulnerable and see how the lawyer handles it. A good lawyer will give you reassurance, but will try to keep your expectations realistic. If they tell you there is no question that you will get every single thing you want, guaranteed, that may be a problem. On the other hand, if they do not instill confidence, you may end up second guessing every decision you make, including the decision to hire that lawyer. Ask the question, sit back, wait for the answer, and listen to your “gut.”

Happy “make a will week”

While most don’t want to think about their death, the process of making a will is an important one.

Make a Will Week is happening from April 10 to 16 as a reminder to British Columbian’s that making a will is easier than they may think.

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!!