Category Archives: Updates

Wedding bells, marriage agreements & all things in between.

I drive by at least two wedding stores on my way into work in the morning and I love to look at the pretty dresses.  The sparkle holds promises of wonderful things to come and the little bridesmaids dresses make me think of little additions to the family.  What I usually don’t think of during that time is what is going to happen if the relationship goes south.  Statistics still suggest that at least 50% (actually more but I don’t want to rain on anyone’s parade) will not work out.

People have their own opinions about whether or not planning for the break up of a relationship is bad luck or good sense.  I am of the second group.  However, not because I’m a lawyer and therefore programmed to think the worst, but also because I do believe and have seen that talking about these things at the beginning of a relationship make an already strong relationship stronger.  It takes out any fear or uncertainty that either side may have and clearly sets out the expectations of both parties.  If a relationship can’t handle that – well maybe it’s not ready for marriage?

First of all – before we go any further – I need to clarify something.  We still fly the Maple Leaf on our flag poles as opposed to the Stars and Stripes, so we deal with cohabitation agreements or marriage agreements – not prenups! 

 A cohabitation agreement is obviously an agreement that two people enter into when they are considering living together.  It would govern how they would deal with financial matters and other matters during the period of time that they are living together and would contemplate what would happen if the relationship ended.  A cohabitation agreement can become a marriage agreement if the parties then decide to marry.  As lawyers we generally put terminology in allowing for this.

 A marriage agreement is an agreement that two people enter into before or after they marry.  It governs how they are going to govern themselves during the marriage and considers what would happen if the marriage were to end.

 For the most part, both agreements can deal with the same things: how money is going to be dealt with during the relationship, how property that one person has pre-relationship is going to be dealt with, how any property accumulated during the relationship will be divided and what support would be paid from one party to another.  The scope of the agreement is only governed by the creativity of the drafter (and good legal sense).  However these agreements are so flexible that they can even consider who will get custody of the animals!

 The Family Law Act (which is the governing family legislation in British Columbia) specifically allows for parties to enter into agreements dealing with support and property.   The courts will uphold these types of agreements provided that when the parties entered into the agreement:

a.       both parties appropriately disclosed what their financial circumstances were;

b.      neither party was vulnerable and the other took advantage of that (either due to the party’s ignorance, distress or need);

c.       both parties understood the nature and consequence of the agreement that they were entering into; and

d.      there were no other circumstances in place that would have deemed the contract to be void.

All of this can be confirmed by having each party take the agreement to different lawyers and get a certificate of independent legal advice signed at the same time that they sign the marriage agreement or cohabitation agreement.  This then serves to confirm to the court that both parties understood what they were signing, had made the appropriate disclosure and there was no duress.  For the cost of the independent legal advice (usually two hours of a lawyer’s time) you can save thousands in legal fees if the agreement is ever brought to court.

When clients sit across from me at the break down of the relationship, their biggest fear is the unknown.  Having a marriage agreement or cohabitation agreement takes some of that unknown out of the picture.  And as we begin to marry later in life or for multiple times – we see more and more brides and bridegrooms coming into relationships with assets that they want to protect.  It only makes sense that while you are discussing what your colour schemes are and where to sit great aunt Edna that you also speak about what you both believe should happen to the family  home if you ever split.

If you have questions on what to put in these agreements or even how to start the conversation with your spouse – call us.  We can help.  Although we aren’t great with colour schemes 🙂

Paule Seeger.

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!!

You’ve separated: Who Keeps the Fur Baby?

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

MYTH: “My former partner and I have reached an agreement to divide our property, so we do not need a Lawyer.”

FACT: If you and your former partner are able to reach an agreement between yourselves as to “who keeps what,” that is wonderful.

The more work a couple can do to reach an agreement on property division or any other aspect of their split, the better.  While is it not a requirement that parties have their divisions dealt with by lawyers, there are some potential down falls to not using a lawyer to finalize the property split.

While our  Family Law Act provides that the courts will not interfere with agreements reached by parties relating to property on the whole, there are always instances were your ex partner can reopen the division after you think it is all finished.  Section 93 of the Family Law Act provides for instances where agreement can be set aside due to circumstances that existed at the time of signing (such as duress, lack of disclosure or a misunderstanding of important terms) as well as circumstances at the time that the party is looking to pull the agreement apart which lead the court to believe that the agreement was significantly unfair.  There are protections that lawyers put into place to decrease the chances of an ex applying to court to have the agreement pulled apart, such as signing certificates of independent legal advice.

Additionally, lawyers have the ability to carry out parts of a property division that lay people generally cannot – for example, if one person is transferring their interest in the family home to the other person but the other person cannot give the first person their payout until the home is transferred, lawyers provide undertakings that make sure both parties are protected and one party does not give up their interest in the family home without getting their money.

Questions? Never hesitate to give us a call.

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. 

Story via Huffingtonpost.com

 

 

 

 

 

6 Secrets to Successful Single Parenting

Making the transition from married to single life won’t be easy for you or your children, but it can be an exciting time of personal growth. Your divorce can be seen as a transforming event, and you alone are responsible for creating a new kind of family for you and your children.

As a single parent, it is of primary importance that you help your children cope with your divorce and develop a mindset of being a positive role model for them. In order to do this, you must take care of yourself. Parents who take control of their own lives, with courage and resilience, help their children do the same. Single parenting is not for wimps. It draws on every ounce of energy from you, forcing you to become a more compassionate person.

How can you embrace this time of your life as an opportunity? Continue reading……

Story via movingpastdivorce.com

 

MYTH: “I have been told that when my child turns 12, they can decide where they would like to live.”

MYTH: “I have been told that when my child turns 12, they can decide where they would like to live.”

FACT:  Whenever the Court makes an order relating to parenting arrangements relating to a child, the court is obligated to make that decision in the best interests of the child.  In order to decide if a parenting arrangement is in a child’s best interest, it is necessary for the court to consider all of the factors that are set out in section 37 of the Family Law Act.  One of the factors set out in section 37 is “the child’s views, unless it would be inappropriate to consider them”.  This is the section which enables the courts to hear the child’s views on, for example, where they would like to live.  These views are often provided to the court by way of a brief Hear the Child interview conducted by a professional  or a more in-depth section 211 Views of the Child / Parenting Time Report.  Both of these reports are filed with the courts.

There has become a rule of thumb that the older the child is, the more appropriate it is for the courts to consider their views when determining a parenting arrangement.  Generally, children between 12 and 14 would have their views considered  by the court while the views of children over the age of 14 will be given more weight.  It is generally accepted that once the child is over 16, he or she can “vote with his or her feet”.    However, the Court will always consider each situation individually and would consider factors such as whether the child is mature enough to properly understand their views, and whether such views appear to be independent. Everyone’s circumstances are different, and all children are unique.  If your situation does not fall within general terms, it is always best to discuss your situation with a lawyer. Questions? Never hesitate to give us a call.

 

Co-Parenting Tips For The Holidays: Creating New Memories

One of the toughest times of year for family members following divorce is the holiday season. Let’s face it, it’s a challenge for parents to create new traditions and to let go of grudges and bad memories of past holidays. For the recently divorced parent, the holidays can be an emotional, stressful, and perhaps a lonely time of year – especially if they don’t have new traditions and support systems in place.

For children and adolescents, the holiday season can remind them that their family is now divided and can elicit loyalty conflicts because they may feel that they are pulled in every direction and will ultimately disappoint both of their parents. Children may worry that they won’t get their needs met and they can benefit from new traditions and activities to replace the memories of holidays in the past. Young children may be particularly vulnerable during the holiday season post-divorce because they crave and thrive with predictability and routine – which go out the window this time of year.

First and foremost, you need to do everything in your power not to intensify your children’s loyalty conflicts during the holiday season.

It’s wise to be flexible and understanding as you negotiate schedules – your children may feel torn between their parents’ two disparate worlds. Show compassion for your kids if they seem stressed or worried.  Remind them that it’s normal to feel more stress this time of year and you will help them to navigate through rocky patches any way you can.

Continue reading here…..

Story via movingpastdivorce.com

4 Considerations for Holiday Child Custody Arrangements

Whether it is the father who needs an extra day of custody in order to match the round-trip tickets he has already purchased, or the mother who is trying to “keep up” with the gifts that the father is giving. Then there is the parent who is concerned his/her child isn’t going to cooperate with the custody schedule. Yes, there are far too many people who encounter a variety of problems around the holidays. With that in mind, we suggest 4 items parents prepare for to ensure that peace and harmony prevail and that the Yuletide season be as calm as possible.

Don’t Wait Until December to Figure Out Your Holiday Child Custody Schedule

Nothing is worse than leaving the exact holiday child custody schedule “up in the air” until December; then trying to negotiate a schedule on a race-against-time basis. If you are already divorced, or in the process of getting divorced, one of the first things you should have is a written agreement detailing when you have the children during the week, days off from school, and of course, the emotionally-charged holiday season. The more detailed the agreement, the better!

Don’t Try to Match Your Ex-Spouse’s Plans, Just Be Happy With Your Own

No two parents are ever going to have identical plans for the winter break for a number of reasons. First and foremost, ex-spouses typically have different access to funds to pay for vacations and/or have different ideas about how much money they should spend on vacations with the children. Whichever parent you are, whether you are the parent with nearly unlimited funds, or the parent with a strict budget for vacations, it is best to ignore whatever you ex is planning. Instead, focus on your time, and your plans, and what you would most enjoy doing with the children.

Let your ex-spouse do and spend whatever he/she wants to. The more you dwell on your ex’s plans, the less likely you are to be happy with yours. Winter break is an ideal time to catch up with your children; spend quality time with them, even if it is simply “doing nothing” time. Children can be overly scheduled. Simply relaxing and hanging out means quality time and that offers value to all of you as a family. Whatever you choose, the mere fact that you made plans, and then executed them, is more than enough to satisfy your children. They too are looking forward for that same catch-up, quality, and possibly “do nothing” time with you, too. With that in mind, pay careful attention to the next suggestion.

Let Your Children Have a Say in your Together-time Plans

Your children probably have opinions about how they’d like to spend their winter break. After all, it is their break from school, just as much as it your break from work. You should think about asking them what they are interested in doing. Even better: to avoid run-away expectations, do some research in advance and present two or three alternative plans which you have already priced and found acceptable. Let them have the final say on what plan you ultimately put in place. Kids like that! They want to be included. It makes them feel powerful, especially when they are being shuttled back and forth between parents. This precludes them from complaining because they were part of the “choice” process. That way there is not a whole lot of basis for blame.

Don’t Worry About Who Your Ex-Spouse is Going to be With When the Your Children Visiting

In most cases, your ex-spouse is going to make reasonable choices about which of their friends and relatives they are going to have your children around during the holidays. Really; truthfully, you need to recognize this, and honor this. Constant nit-picking and micro-management over who your children spend their time with when they are with the other parent is not fruitful. In fact, this dynamic distracts you from the parenting you should be doing.

If you are spending most of your energy trying to prevent your children from being with your ex-spouse’s family, you probably don’t have enough energy left to enjoy the time you have with them. Remember that you are always setting an example for your children. In light of that reality, always stop and ask yourself, is what you’re complaining about a personal beef or does it have real merit?

In sum, keep in mind what the season—that winter break—represents. It is a time for “goodwill and good tidings toward all humankind,” including your ex!  It may mean you foster a sense of “giving” as you go about negotiating your agreement.

Story via Divorcemag.com

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