Frequently Asked Questions about Family Law
Legal matters can be difficult to navigate, but the lawyers at Trillo, Perello & Yates in Nelson are here to help. Take a look at some of our frequently asked questions about family law.
Our relationship is in trouble. Where do I start?
Whether you want to separate or your partner has told you he or she wants to, any relationship troubles are a very stressful time. Our first recommendation is that you seek counselling and take the steps necessary to protect the health and safety of yourself and your children. If you have an employee assistance plan, they often offer confidential counselling and other resources for you and your family. A family lawyer or your doctor can assist you in finding the resources available.
Do you provide Independent Legal Advice (ILA)?
Yes we do. We will review agreements including separation agreements, marriage agreements and pre-nuptial agreements to ensure the terms are clear and have the meaning you agreed to. We will review your overall circumstances and ensure that you were aware of all your options at the time you entered into the agreement. If the agreement is acceptable to you, we will do a confirming letter to you and certify that you have received Independent Legal Advice. We charge a flat fee for doing this. If you are not happy with the agreement, we will advise you of your options at that stage.
Is it different if we are living common law and have not been legally married?
As of March 18, 2013, changes in family law legislation have significantly altered the rights and obligations of couples who live together, regardless of whether they are married. In many family law issues, including spousal support obligations and the division of family assets, couples who have lived together in a “marriage-like relationship” for longer than two years will be treated the same as married couples. Choosing to move in with a partner can therefore be a significant choice with serious consequences down the road. You may wish to speak with a family lawyer about preparing a Cohabitation Agreement, which can clearly set out your property rights and obligations both during your relationship and in the event you separate.
Why is the date of separation important?
The date of separation will be key in determining many family law issues, including property division and maintenance. Sometimes the date of separation is clear and obvious. Other times the separation is gradual, and it can be hard to pinpoint a precise date. A couple can be separated despite living under the same roof, so long as they intend to be living apart. In such cases, it is always prudent to seek legal advice for assistance.
How do I find out how much has to be paid for child support or spousal support?
There are legislated guidelines that the courts will refer to when considering the amount of maintenance payable. However, these are only a guide, and each case will vary depending on the facts. Therefore, these guidelines need to be used with caution.
If I hire you, will all matters be kept confidential?
We understand the importance of confidentiality and discretion in family law disputes, especially where children are involved. We have a very strict ethical duty not to share the information we obtain with anyone except with your permission. Anything you tell your lawyer is privileged. That means your lawyer or their staff cannot be compelled by anyone (including the courts or police) to disclose what you tell your lawyer unless it appears you are going to commit a crime in the future or cause harm to yourself or someone else. In some situations, the court proceedings can either be sealed or initials can be used instead of names so that your affairs will not become public knowledge.
I feel financially trapped. What if I can’t afford to separate?
There are many different ways to start your transition to separation. It is common for there to be a temporary drop in the standard of living as families are forced to incur the cost of additional accommodation, rent or mortgage payments when one partner moves out. This lower standard of living is usually temporary and leads to a much better lifestyle in the long-term. A lawyer can make your options clear and let you know what you are entitled to by way of property division, as well as child and spousal support. The Family Law Act also allows certain safeguards to protect partners who may be cut off from an income stream upon separation. For example, the courts will make urgent orders forcing the party who has moved out to continue to pay the utility bill so that the remaining partner is not left without power or heat.
When should I tell my spouse I want to separate?
It depends on how your spouse will respond. Sometimes people think the best of their spouse, and that they will accept the fact that separation is going to occur. Other times, the reaction is hostile and destructive. Where it will be on this spectrum is often very hard to predict. Our recommendation is to seek legal advice and counselling to determine the best way of telling your spouse and to be prepared for all outcomes. Sometimes it is best to do it yourself; other times the best course of action is to have someone else do it for you, or someone else present. If you have any concerns over the safety of yourself or your children, it is very important that you seek the help of a lawyer who can assist with protection orders from the court, such as restraining or no-contact orders.
We both want to separate, and we agree on everything important. So don’t we just need to get the documents drafted?
The real question is, are both partners aware of all their options and entitlements? Often an agreement is made in a highly emotional time that’s filled with anger, guilt, manipulation or perhaps just the desire to “get it over with.” Someone who is not emotionally involved and experienced in family law should be consulted separately by each spouse. If both partners enter into a separation agreement with their own independent legal advice, it is far more difficult for either to go back on their obligations later on. It is therefore often cheaper in the long-term to consult a lawyer in these matters. If there is agreement on most issues, it is likely that having a lawyer’s assistance in drafting a separation agreement will be relatively simple and inexpensive.
Now that we are separated, I need to move away for work so I can afford to meet my obligations. Can I take the children with me without the permission of my ex?
Lawyers refer to this issue as a parent’s “mobility rights.” This issue can be very difficult and complex to resolve, particularly in remote regional areas where a single parent’s employment prospects may be limited. The court’s primary consideration will always be the best interests of the children and each case will be decided on its own merits. Potential important factors include:
- The age, development and any special needs of the children
- Employment and income opportunities in the new location
- Schooling and recreational opportunities in either location
- Travel time and convenience of travel between parents
- Support of family and friends in either location
- Whether the moving parent will encourage a relationship between the children and the other parent
What should I do if I can’t afford a lawyer?
There are a number of alternatives open to you.
- If you have property or other assets that will become available in the process, it may be possible to use such assets as security for legal costs. Our firm considers such situations on a case by case basis.
- There are resources available for self-help on simple matrimonial matters. One great online resource is JP Boyd’s Wikibook on Family Law. For just resolving issues of parenting schedules, guardianship, parenting time and child support, you can contact the free BC Family Justice Counsellor service.
- If you qualify, you can apply for legal aid. Our firm does not provide services through the legal aid regime. You can contact the Legal Services Society to see if you qualify.
In British Columbia, how are property and other assets divided?
Under the new Family Law Act, where a couple, married or unmarried, has lived together for at least two years, all property owned by either partner at the time of separation is considered “family property.” There is a presumption that each partner is entitled to a 50-50 interest in all family property. However, some property and assets are “excluded property” under the Act. These may include inheritances or property acquired before the relationship began. Excluded property is presumed to remain the property of that party even after separation.
Where excluded property increases in value during the relationship, that increase will be family property and shared equally between partners on separation. For example, John owns a home that is worth $200,000 at the time he moves in with Rebecca. Five years later, they separate and the home is now worth $350,000. In that case, the original $200,000 value is excluded. However, the $150,000 increase in value will be family property and is split equally. So, John gets $275,000 and Rebecca gets $75,000.
However, life is rarely this straightforward. There are always complicating factors, such as shared mortgage payments and property purchased during the relationship with funds acquired before the relationship. It is always a good idea to seek legal advice if you are going through or thinking about a separation and you’re not sure where you stand.
I don’t want to claim spousal support, but I can’t even afford to pay my rent or mortgage. What can I do?
This can be a very touchy issue and is sometimes a matter of pride and wanting to be self-sufficient. Other times, there is “economic blackmail” – one spouse controlling the finances so the other cannot be independent.
Instead of spousal support, a spouse with a lower income may be entitled to more of the assets, such as the house, savings or RRSPs. Spousal support may be necessary as a temporary measure, until you are back on your feet.
Remember, you must make a claim for spousal support within two years of the divorce if you are married or within two years of separation if you are not married.
My employment situation has changed and I am now behind on my support payments. How do I change the support arrangement?
The first thing to look at is the basis upon which you are making payments. If there is no order or separation agreement in place, you may be able to negotiate with your former partner.
If there is an order or separation agreement in place, it gets a bit more complicated. First, you have to consider if the order or agreement is one that was permanent (final) or just temporary (“interim” or “reviewable”). Interim or reviewable agreements are easier to have changed.
If there is a final order for support payments, then you will have to show that there has been a “material change in circumstances.” This means that something significant has changed that couldn’t have been foreseeable at the time the final order or agreement was made. Things such as job loss may be a material change if it was unexpected and your loss of earnings will likely be long-term.