Tag Archives: separation

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

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.

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!!

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

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.”

How social media effects YOU & YOUR case.

Ok everybody listen up!

We all use social media so much today that we forget that it is written documentation.  We send texts indiscriminately, we update our FB pages without considering who is seeing them, we send our boyfriends or girlfriends compromising selfies  and we still seem to believe that all of this is private.  Guess what? It’s really, really isn’t!

I can’t count how many family files I have that have reams of text messages between the two warring parties. Things said in anger or in jest are raised from the dead and entered as evidence of a person’s bad parenting / anger and general bad attitude.  We need to be more cognizant, especially when dealing with an estranged spouse that these texts can AND WILL be used against us.  So think twice before drunk texting – stick to good old fashioned drunk dialing, at least those conversations are still somewhat private.

I have also seen situations where one party swears up and down that little “Johnny” wasn’t driving in their car without a seatbelt / driving on a quad bike that wasn’t age appropriate, or doing other activities that are unsafe – only to then see many pictures pulled from their FB page of little “Johnny” doing exactly that!  Now the client has double trouble – little “Johnny” is obviously engaging in unsafe activities which is bad enough, but now the client is also categorically lying ….

And the proof is there in the photos!!

So the next time the client swears up and down about something, what is the likelihood that he (or she) will be trusted? Slim to none unfortunately.  So save all those photos for your personal use or do a giant upload much, much later when your family law file is a distant memory.

Finally, remember the naughty photo sent in the early stages of a new relationship when we feel loved up and all sexy?  Remember, those photos don’t always end up where they should end up.  The last thing you want is a naughty photo of yourself or your new partner being entered into evidence to attack your credibility in a situation where the relationship possibly started earlier than you want to admit to.

The basic rule is “don’t do something that you wouldn’t want the world knowing about”, but since we are all human and therefore do things we aren’t always proud of – don’t post them, talk about them or send them via social media.

It’s called social because LOTS of people have access to it!!

Paule Seeger, B.A. LLB

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!!

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