• Upon what basis can I get a divorce?
• How quickly can I get a divorce?
• Can I begin dating before I get a divorce?
• What will happen to my claim for the marital home, should I leave the home prior to getting a divorce?
• What is mediation?
• What is shared parenting?
• How does the court decide about custody and access?
• How do I determine entitlements to child support and spousal support?
• How will my property be divided when I get divorced?
• Do I have the same rights upon separation if I'm living in a common law or same sex relationship?
• Should I go to Provincial Court or Supreme Court?

Upon what basis can I get a divorce?

After parties are married there are three bases upon which a divorce can be obtained. A party can obtain a divorce based upon the other party's adultery (i.e., having sexual intercourse after marriage), one party treating the other in such a cruel matter that their continued cohabitation is impossible, or after living separate and apart for one year.

Certain grounds for divorce like adultery need to be corroborated in some way. Others, like living separate and apart for one year can be dealt with without the need for corroboration.

Although quite often the time of separation is calculated from the time that one party leaves the matrimonial home, parties can be living under the same roof and be separated. Whether or not you are separated while still living with the other party depends on your circumstances.

Once there are grounds for divorce, the only basis upon which the court can deny you a divorce is if the children of the marriage are not financially looked after. Otherwise, if there are grounds for divorce, you do not need the other party's consent to obtain a divorce. When contemplating a divorce proceeding, you should contact us and we will help you to determine the date of your separation, the needs of your children, and the most appropriate way to expeditiously help you obtain a divorce.

How quickly can I get a divorce?

If you have no children and there are no disputes about asset division, you can usually obtain a divorce in British Columbia within three to four months. It will take longer if the other person resides in the United States or outside North America. These types of "uncontested divorces" are handled without court appearances and we can prepare the documents on your behalf. Usually this will require only one or two meetings with us.

Can I begin dating before I get a divorce?

You can begin dating before you get a divorce. As there is no fault divorce in British Columbia from a strict legal perspective this should have no or little bearing on the outcome of your case. However, if you make this decision you should use discretion in your disclosure of this fact. A new relationship often causes an emotional reaction for children and former partners that can often make cases more difficult to resolve by consent and further at times this decision can have an impact on determinations of child custody and access.

What will happen to my claim over the marital home, should I leave the home prior to getting a divorce?

As the law in British Columbia is a no fault law with respect to asset division, the fact that you leave the matrimonial home will generally have no bearing on your ability to share in assets like the matrimonial home. However, if parties have children, quite often, the person who remains in the matrimonial home may have from a practical perspective, an advantage in a custody dispute regarding children as the children are familiar with this environment.

As well, if it is determined that children should remain residing in the matrimonial home this can sometimes lead to a temporary order which will leave the custodial parent with control of the home and resulting in a delayed asset division.

In some circumstances it is however important that one party leave the matrimonial home for their own protection or that of the family. In this context, the complex issues of domestic violence can play a role.

Given the complex nature of the decision to leave the matrimonial home, it is important that you consult with counsel prior to leaving the matrimonial home. If you are contemplating such a move, contact us for an appointment.

What is mediation?

Mediation is a process where a neutral third party assists two people who have separated to come to an agreement regarding the matters that result from the breakdown of their relationship. The mediator cannot give legal advice to either party and is not a judge. Mediation can be a good and effective way to resolve a family law problem, but is only successful where both parties desire compromise. You should contact us to explore the issue of mediation further if you are interested in this process.

What is shared parenting?

Shared Parenting is a concept that involves custody arrangements that require the parties to agree to a shared parenting plan, which would provide for the sharing of responsibility regarding the raising of the parties' children. The central theme is that parents of children should come together in the best interest of their children and develop a joint parenting plan involving the various aspects of their children's lives. There was some discussion in a recent joint committee report of Canada's Parliament regarding amending the Divorce Act to require a shared parenting plan be implemented upon divorce. These recommendations have yet to become law. We promote where possible the idea of shared parenting to avoid costly custody disputes for our clients. You should contact us if you wish to discuss your shared parenting options.

How does court decide about custody and access?

If parties are married and have a child or children, the custody and access each party will have with the children is determined under the Family Relations Act if people are unmarried or married but do not wish to get a divorce. If parties are divorcing, they can have their rights to custody and access determined under the Divorce Act.

There is essentially no difference between the two statutes and the issues of custody and access in each case will depend on the determination of the "best interest" of the children. In determining what is best for any child, the courts will look at many considerations that can include the following:

• The willingness of each parent to facilitate access to the other parent claiming custody;
  
• The issue of who has been the primary care taker of the children;
  
• The ability of the parties to communicate effectively for the benefit of the children;
  
• The desire to maximize the contact of each parent with the children after the parties separate;
  
• The living arrangements of each party and each party's ability to care for the children;


• The special, emotional, and other needs of individual children including those needs that relate to education, medical care, and individual, physical or emotional challenges.

Who ultimately has custody of the children after separation can have a serious impact on the division of assets and debts as well as the income of each party post-separation. Prior to making any decisions regarding custody, you should discuss with us your options for coming to a mutually beneficial custody and access arrangement that will promote your relationship with your children and minimize the negative consequences of prior court decisions upon you.

How do I determine entitlements to child support and spousal support?

In both the case of married and un-married relationships, parties can apply to court for the other party to pay them child support for the benefit of their children.

Children can include not just a persons biological children, but children who are the other party's children from a prior relationship. In this context, whether or not the claim is made in a married or unmarried situation, a schedule known as the Child Support Guidelines sets out the basic requirements of child support for the non-custodial spouse.

The court has jurisdiction in limited circumstances to vary the Guideline amount of support payable by the non-custodial spouse. Factors which can be included in this determination are: the debts of the parties, their legal responsibility to support others, the parties' incomes and standard of living, and the amount of time each party spends with the children.

As the determination of final support often relates to the issue of custody and access, you should obtain legal advice prior to coming to a determination of your support obligations.

Child support payments can also include amounts for extraordinary expenses (other expenses) necessary for the children like private educational expenses, music lessons, fees for athletic competitions, and medical expenses.

The issue of spousal maintenance is determined based upon the parties' needs and means post separation. Important factors include the roles of the parties during the relationship, ongoing child care responsibilities, the ability of the parties to maintain and obtain suitable employment and reasonable income subsequent to a separation, and the ongoing economic needs of each party in the context of the standard of living the parties enjoyed during the marriage and which they could be expected to enjoy after marriage.

If a person has resided with another party for a period of more than two years and has supported a child from the other party's prior relationship they can be obligated to pay child support for that party's child until the child is no longer a dependant child. In some cases, as with a person's biological children,
this will mean that support can continue until the child is 19 or after 19 years of age, if the child is still dependant upon their parents. A common example of dependence of a child 19 years of age or older is a child living at home with the party receiving support while the child is attending college or university.

Although the basic amounts in the Child Support Guidelines are applicable for adult children and stepchildren, the court has a great deal more discretion in departing from this award of basic child support and can even decline to make any order of support in the appropriate circumstances.

Child support payments are not tax deductible by the person paying the support and are not included in the income of the person receiving the support provided the order, or agreement dealing with the support, is entered into by the parties after May of 1997.

On the other hand, spousal support payments, if they are part of a written agreement or court order, are taxable in the hands of the recipient and are tax deductible for the payor of the support.

Given the dramatic long-term consequences of support orders and agreements, you should contact us to discuss the most appropriate way to deal with your support obligations and needs. You may use our Guideline Child Support Calculator to get some idea of your basic support obligations.

How will my property be divided when I get a divorce?

In British Columbia, parties who are married obtain a one half interest in each family asset upon the occurrence of the signing of a separation agreement, an order of divorce, or a declaration by the court that there is no prospect that the parties will reconcile. Each of these three events is commonly called a "triggering event'' as it is at this time that the interest in the asset arises.

Often it is important for the spouse that does not own an asset, to obtain as early as possible after a separation, a triggering event to ensure that their entitlement to share in a family assets from a practical perspective is not compromised by the other party or a third party creditor.

What is a family asset is determined primarily by whether or not the asset was used by the family during the course of the marriage and through the direct and indirect contributions made by the parties to the maintenance and acquisition of the asset. Contribution includes in this context, both direct contributions like money, and indirect contributions like a parties' domestic labour and care for the children of the marriage.

Once an asset is determined to be a family asset, after the "triggering event" each party is entitled to a 50% interest in the asset subject to either party's right to claim they should have a greater than 50% interest in the asset. Circumstances that can cause the court to vary the 50% interest include the ongoing needs of the parties to be economically self-sufficient, the length of the parties' relationship and marriage, and the contributions that the parties made to the acquisition and maintenance of the specific asset. Often gifts from family members can play an important role in determining what is a fair division of an asset.

Given the complexities involved in asset division, you should consult with us prior to finalizing the division of your marital assets.

Do I have the same rights upon separation if I'm living in a common law or same sex relationship?

The answer to this question depends upon the issue being discussed.

Contrary to popular belief, the term "common law marriage" has no real meaning in law in British Columbia. This is a term used primarily by the public to describe what they perceive to be a serious and ongoing relationship between two people, usually of the opposite sex.

If parties are married, they can apply for spousal maintenance under either the Divorce Act, or Family Relations Act simply because they are married and are deemed to be spouses under these acts.

If the parties are not married, they can apply for spousal support only if they have lived in a marriage like relationship for a period of two years and they apply to the court for an order of support within a year of the parties' separation. For this purpose, in the Family Relations Act a spouse includes a person who is in a same sex relationship.

If a person has resided with another party for a period of more than two years and has supported a child from the other party's prior relationship they can be obligated to pay child support for that child until the child is no longer a dependant child. In some cases this will mean that support can continue until the child is 19 or after 19 years of age, if the child is still dependant upon their parents. A common example of dependence is a child living at home with the party receiving support while the child is attending college or university.

Although the basic amount of the Child Support Guidelines are applicable for adult children and stepchildren, the court has a great deal more discretion in departing from the award of basic child support with adult children and step-children and can even decline to make any order of support in the appropriate circumstances.

Unlike in the case of a married couple, people in unmarried relationships and same sex relationships are not entitled to a 50% share as of right prior to reapportionment claims in family assets.

In the circumstances of unmarried couples and same-sex unions, the court refers to a series of judge made rules (or trust principals) to determine what interest, if any, either party should have in any given asset. The court will look at factors such as whether an asset was gifted to another party, each parties' intention as expressed during the relationship by words or conduct as to the sharing of each others assets, the contribution of each party to the acquisition and maintenance of an asset, and the benefits and liabilities that each party has acquired as a result of the acquisition and disposition of assets. It is often important, before leaving a common law or same sex relationship, to take steps to ensure your interest in assets are protected. For example the issue of obtaining an interim restraining order or injunction must be more carefully considered. In cases of marriage the Order is more or less mandatory while in unmarried cases a great deal of consideration is given by the court to the immediate and potential hardship of the restraining order sought and the damage that could result to the party who has title to the property. We can assist you in formulating a plan to ensure your rights in property are protected in this complex situation.

Recently the Family Relations Act was amended to allow for people to opt in to the asset division provisions of the Family Relations Act voluntarily. Great care must be taken in drafting settlement documents involving unmarried couples who have experienced a relationship breakdown to avoid inadvertently bringing this new section of the Act inappropriately into play. Contact us for an appointment if you wish an agreement, which deals with the considerations applicable to this issue.

Recently, through the use of the Charter of Rights and Freedoms, in other jurisdictions in Canada and in other legal contexts in British Columbia, the Superior Court has been prepared to extend the rights granted to married couples to those living in common law and same-sex relationships. We are prepared to use the Charter of Rights and Freedoms creatively to assist you in achieving a fair and equitable marriage settlement through the Courts of this Province.

Should I go to British Columbia Provincial Court or British Columbia Supreme Court?

Only the Supreme Court has jurisdiction to deal with the assets of the parties.
Also, only the Supreme Court has the authority to grant a divorce and to deal with claims under the Divorce Act.

The Provincial Court can deal with child and spousal support and can deal with issues of custody and access and the granting of no contact and non-molestation orders under the Family Relations Act. The Supreme Court can also deal with these issues under the Family Relations Act.

In certain cases applying to the Provincial Court can provide a very fast result. In other cases, especially where a divorce is sought or assets are being dealt with along with custody and support, the better forum is the Supreme Court because all issues can be dealt with at once.

Also in the Supreme Court there are procedures available once you file in this court regarding the use of Affidavit Evidence that sometimes allow you to get into court faster than in Provincial Court and to discover more about the other party's case, which are not always available to you in Provincial Court without first obtaining an order of the Provincial Court. In this context, even in cases not involving asset division or divorce, it may well be appropriate to proceed in Supreme Court. You should consider your choice of forum carefully prior to taking any legal action. Making the wrong decision could result in multiple proceedings that will dramatically increase your overall court costs.
You should contact us for an appointment to discuss the issue of where to proceed. It is an important decision in your case.