Category Archives: Updates

We are looking!!

We are excited to announce that we are looking to fill some shoes.  Junior lawyer shoes.  Paralegal shoes &  Legal assistant shoes.

We are a sole practitioner firm in downtown Kelowna and we are looking for a full time junior lawyer,  legal assistant & paralegal.

Seeger Law is a small forward-thinking and progressive law practice focusing on Family Law, Wills & Estates and Corporate Law

The ideal candidate will be comfortable working in a fast paced, team orientated environment. Have the ability to multitask & take initiative. If this sounds like you and you are ready to learn, please submit your resume and cover letter to seeger@seegerlaw.ca

 

 

 

 

 

 

Are you considering separating from your spouse?

If so, below are some important facts and information regarding separations in Canada. Hopefully we can clarify a few common misconceptions about separations and then help you to understand exactly what a Separation Agreement is.

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.

Important items needed in a Canadian separation agreement:

  1. Full Legal name of each spouse
  2. Date of separation
  3. Issues surrounding Children:
    • Who will they live with?
    • Who will have custody?
    • Who will have access, and how will access be determined?
    • How much child support will be paid?
    • When will child support end?
  4. Spousal support:
    • Will spousal support be paid. If so, how much, when and for how long?
    • If spousal support is waived, is it waived forever?
  5. Property division:
    •  A clear list dividing who is to get which items and when.
    • If you own a house you need to outline:
      • Will be sold?
      • Who is responsible for it until it is sold?
      • Who will live in it until it is sold?
      • How proceeds from the sale will be divided?
  6. Debts:
    • Who will be responsible for which debts?
    • How debts incurred after separation, but before divorce will be handled.
  7. Pensions, RRSPs, RESPs, etc:
    •  Will you split your pensions and/or RRSPs?
    • If you have RESPs, who will be entitled to permitted transfers?

Signing a separation agreement is a very important step. It is important to remember that the decisions that you make in this document will affect you, and your children’s lives and future. A separation agreement is a binding contract that you must honour and quite often it is used as the basis for your actual divorce. It is always best to have your separation agreement created by a lawyer, or at least reviewed by one before it is signed. Always ensure you carefully consider everything on the separation agreement before agreeing to it, and then signing.

Questions?

Via Divorce Canada

Co-parenting? Summer break is almost here…

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

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

Click here for info & consent forms to travel. 

 

Ever wonder how child support is calculated?

Out of all of the areas to get creative when coming up with a resolution to your family dispute – child support is not the one to do it in!!  Generally the view of our courts is that if two people want to get divorced and reach agreement on all matters relating to their relationship – have at her.  However, the court also believes that someone has to ensure that any children of the marriage are looked after – and as such, will take a very active role when it comes to the support of children.

It isn’t only people who end up in court that need to be aware of this.  People who reach agreements without going to court may think that they are exempt from this – however if you want to get a divorce, you need to swear a child support affidavit detailing what is in place to look after the children of the relationship.  If it does not coincide with the child support guidelines and you don’t have a very good reason why – expect your application for divorce to be sent back for clarification (or “bounced”).

 In Canada, the term “child support” is made up of two different parts – Base Child Support and the payment of Special and Extraordinary expenses.

 Canada has Federal Child Support guidelines that provide the appropriate amount of based child support for each child of the relationship based upon the income of the payor.  So, if you have three children and earn $50,000.00, you would find your income amount on the guideline table and go across to the column for three children.  The amount in that box is what you have to pay.  It’s that simple.   There are calculators online that will also give you the amount (Family Maintenance has an excellent calculator and it’s free).    I tell my clients that base child support is meant to put shoes on their children’s feet, food in their children’s tummies and a roof over their children’s heads’.

 The is a second part to calculating child support is determining what the special and extraordinary expenses related to the children are going to be.   These expenses are exactly that – they are above and beyond base child support.   These expenses are defined in section 7 of the Federal Child Support Guidelines and include things like costs of medical and dental above extended health coverage, the costs of extracurricular activities and other expenses agreed upon by the parties.  This is not an exhaustive list.  Generally, if little Johnny has been doing the activity and the parties can afford to keep paying for it, the courts will consider it a special and extraordinary expense and you will continue to be obligated to pay for the activity.  Payment of special and extraordinary expenses is made in proportion to both parties’ income.

 This is a very, very basic overview of child support.  There are always exceptions – such as if the payor’s income is over $150,000.00 when calculating base child support, the payor lives out of town and incurs costs to exercise their parenting time with the child and if paying the base amount of support would result in an undue hardship.  It is always best to have a chat with a legal professional about support before entering into any binding agreement.

Questions?

“The Talk”: Telling the Kids About Your Plan to Separate or Divorce

Sharing the news with your children that you and their other parent are divorcing, moving into two homes, and living separately can create great angst and worry.  What to say? What not to say? As parents, you want to protect your children from harm, yet you know that giving them this news is going to be painful.

You probably have lots of questions about how to handle this important conversation well and minimize harm to your children. And, there’s no trial runs or practice talks. There’s really only the one opportunity to have this important first talk about the divorce with your children. I know you want to do your best in having this important talk with your children.

The words you choose will set a framework for your children view the divorce, what they remember about it, and will set a tone for them about how you and their other parent intend to conduct yourselves through this process. For these reasons, this is a very important step in the divorce process. You want to be prepared, able to handle your own feelings, and be available to answer your children’s questions and support them.

In order to help you feel confident and prepared, I have identified the key messages you will want to send to your children in this brief, but important talk.

#1  Share the news. “We have something important to discuss. Mom/Dad and Dad/Mom are separating/getting a divorce/moving into two homes.”

#2 Give a brief, age appropriate explanation that avoids blame, is honest, (but doesn’t share too much detail about the intricacies of your marriage) and validates your children’s reality of what they may have witnessed/experienced/felt in the home. “We haven’t been able to get along as married partners and think we can be better parents from two homes than we can be married partners together.”  “We haven’t been able to resolve some significant problems/differences in our marriage so we are getting divorced but will continue parenting from two homes.”

#3 This is not the child’s fault. They didn’t cause the divorce and they can’t fix it. “This is an adult problem between Mom/Dad. This is not because of you, is not your fault, and you can’t fix it.”   “Love between adults can end, but the love between a parent and a child doesn’t end.”

#4 Ask about and validate feelings. “I’m guessing you might be having all kinds of different feelings about this news.”  “I can understand how you could feel that way.”

#5 Identify specific things about their lives that will change. “Dad will be moving into an apartment at the beginning of next month.” “Some days you’ll be at Dad’s and some days you’ll be at Mom’s house.”

#6 Reassure them about the parts of their lives that will stay the same. “You’ll still go to the same school.” “Mom/Dad will still take you to dance/soccer class.” “You’ll still get to play with Pat on the weekends/afterschool.”

#7 Reassure your children that you love them and will be there for them. “We love you very much.” “We’re sorry to have to give you this news.” “We will always be your parents and will always be there for you.”  “We will take care of you and help you through this transition.”

#8 Ask them if they have any questions. Answer honestly, but with appropriate boundaries about information they don’t need, and appropriate to each child’s age. It’s okay to say “We don’t know yet, but will let you know once we have that figured out.”

Hopefully, you now have specific ideas and scripts to help guide the talk you have with your children. You have bullet points for things to cover, to make it easier to remember. Of course, every family is different. You will need to adapt these general guidelines to the specifics of your family situation and the particular ages and temperaments of your children.

With these tips, you will be ready to help your children know that your family will ultimately be okay, and that their relationships with each of you as parents will remain secure and protected. With your thoughtful handling of this important conversation, your children can feel reassured that, while their family is reorganizing, their parents remain available to them, will continue to parent them, and they will be alright.

Story via movingpastdivorce.com

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