Tag Archives: Kelowna Divorce

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

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

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

 

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.”

Who needs a will? You do! Keep reading……

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!!

7 Ways to Be the Superhero of Your Divorce

It has been a particularity heavy week at Seeger Law offices. We have several clients that have decided to continue on with the divorce process and we feel very privileged to  become a part of what can be a very emotional, stressful and sometimes re-awakening personal process. The ups and downs are different for everyone we work with, but some really do achieve an amazing balance and manage to find the strength to become the

SUPERHERO OF THEIR DIVORCE….

BH-Flickr-Wonder-Woman

 

10 Legal Mistakes People Make During Divorce (And How Not To Make Them!)

What’ s the worst mistake you ever made? For a lot of people, the answer to that question involves their divorce. They settled for too little. They fought for too long. They didn’t understand how their actions would end up affecting their children. They didn’t realize that the legal mistakes they made during their divorce could haunt them for years, and sometimes for decades, afterwards.

The good news is, you don’t have to make the same mistakes that so many other people make. With a little bit of knowledge, and a fair amount of self-discipline and emotional strength (and, yes, you really are much stronger than you think, even when you are going through hell!) you can avoid the….

Top 10 legal mistakes people make during divorce.

torn piece of paper with divorce text and paper couple figures