If you have question, we have answers

  • If you are in immediate danger, please call the police. They will decide if the matter rises to a criminal level. On the family law (or civil) side, the legal remedies are usually either conduct orders or protection orders. The difference between these options is the type of enforcement. Both types of orders can be brought by a quick application depending on the circumstances. If the circumstances are less dire, then negotiations to set parameters can be helpful and less antagonistic.

  • In the Divorce Act, separation is from when “either of them had the intention to live separate and apart from the other” (s. 3(a)). The Family Law Act does not significantly differ from this standard. The parties do not have to physically live in separate housing to be separate and apart. While often it is clear when parties start living separate and apart, on occasion this can be hotly contested. Usually, the exact date is immaterial. You should have some basis for explaining why you say the date of separation is when you say it is. It is improper for you and your spouse to create a separation date in order to get your divorce faster.

  • In the short term, there are many community resources that might be of assistance to you. There are shelters for parties and children fleeing violence. Ultimately, you may want to negotiate or bring an application to have exclusive occupancy of the family residence. You will need legal advice on whether you are likely to succeed on that kind of application.

Separation

Divorce

  • The cost of a divorce is made up of three amounts: legal fees, disbursements, and taxes. The legal fees are the amount that your lawyer will charge you to complete the work. When a divorce is contested it varies wildly depending on the issues. If the divorce is agreed to between the parties, the legal work usually costs between $1,750 and $2,500.

    Disbursements are the amounts that the lawyer pays on your behalf. This includes things like filing fees, arranging for service of documents, photocopying, mailing, etc. For an uncontested divorce this usually is less than $500.

    Unfortunately, our lawyers are not so good that they can avoid taxes. If you find a lawyer that can, they are probably not very ethical. Taxes are paid on fees and most disbursements.

  • A divorce can be granted after 1 year of living separate and apart from your spouse. Under the Divorce Act, the court can grant a divorce before the 1 year mark based on mental cruelty or adultery. Frankly, it is rarely done as it requires additional work and considerations and judges are often reluctant to order the divorce before the year is up. You can start the paperwork prior to 1 year but the court takes it time to process divorce paperwork. It can often take at least 4 months after all the paperwork is completed to receive the divorce order.

  • Probably not. In uncontested divorces, everything can usually be done without an appearance at court. Occasionally, the lawyer is required to speak to an application on your behalf, but this is rare. Accurately completing the paperwork is the critical step in a divorce proceeding.

Property Division

  • The Family Law Act provides the guidance as to what property and debts each party will be entitled to. The case law on this topic is one of the most complex and unsettled topics in family law. It is highly recommended that if you have complex assets or discrepancies in your earned assets you speak with counsel to obtain a more complete answer.

  • Maybe. You should speak to a lawyer about your circumstances. If you are in imminent danger, contact the police. There are parameters in the Family Law Act under section 90 that provides for temporary orders of exclusive occupation of a family residence. You would need specific legal advice on whether you may be entitled to this relief.

  • Typically, the parties either sell the house jointly or one party buys the other’s interest out of the family residence after everything is resolved. However, there are terms of the Family Law Act that in certain circumstances allow for the sale of the family residence. This sale may provide for financial relief as it relates to mortgage payments, but the proceeds will likely be held in trust until a final resolution is held.

    Before you liquidate any major asset, it is advisable to talk to a lawyer about the consequences of this decision.

  • The Family Law Act states that “spouses are both entitled to family property and responsible for family debts, regardless of their respective use or contribution, and on separation, each spouse has a right to [share equally] all family property… and… family debt”. There are exceptions to this rule which can be discussed with your lawyer. The specific circumstances are highly important to knowing what the division will ultimately be.

  • This is important but not determinative. The child’s maturity and capacity will be important in knowing what value to give to the child’s opinions. In family law proceedings, we listen to children’s voices at a certain age and maturity level, but their wish is not the only consideration. The best interest of the child will prevail. One of the many considerations of the best interest of the child is their views.

    However, it is common for children to tell their parents what they want to hear, so be prepared that a child may tell both parents they want to live with them. Often clients will put to great a focus on this one factor, and this can lead to protracted litigation.

  • Each decision must be made in the best interest of the child. However, when parties earnestly disagree about what the child’s best interest is, then a determination must be made. There are a host of options on how to find a resolution (e.g., parenting coordinator, judicial intervention, allocation of parenting rights, etc.). Your lawyer can discuss with you these options and what makes the most sense for you.

  • When dealing with parenting the only consideration is the best interest of the child(ren). To the degree your ex’s new spouse impacts the best interest of the child is the degree that something can be done about the new spouse. Obviously if they are endangering the child, this will have a heavy impact. However, if you simply do not approve of your ex’s new partner, then it is unlikely it will amount to much.

  • If a child is in immediate danger, call the police to intervene. Additionally, adults are required to report to the Ministry of Children and Family Development (phone: 1-800-663-9122) suspected abuse or neglect of a child. Beyond these more imminent options, your lawyer will be able to discuss a host of options. These options are very broad and need to be tailored to the specific circumstances.

  • This is such a high conflict situation that general advice is unlikely to be helpful. You should contact a lawyer immediately.

  • To answer this question your lawyer will need to know the circumstances. They will consider what is obliging each of you to particular time with the child (i.e., agreement, court order, etc.), consider section 183 and 184 of the Family Law Act, and the basis for the child’s refusal. Refusal to attend is serious and you should consult with a lawyer. There may be a need for an urgent court application.

Children

Child Support

  • FMEP is a government agency that deals with payment of child and spousal support. They have considerable power to enforce agreements and orders for support. If you have been contacted unsuspectingly by FMEP reach out and we will help determine what you should do. It is important to understand that FMEP cannot change your order or agreement – they can enforce is currently ordered. It is common for clients to retain lawyers to vary the existing order because circumstances have changed. After the order is varied, the new order goes to FMEP and they will enforce the new order.

  • Child support depends on the parenting time you spend with your child and the income you are capable of earning. If your parenting time is more than 60% and will continue to be so, you may no longer have to pay monthly support. If your income is falling due to circumstances outside your control, then this may be a material change worthy of decreasing support. Each case is dependent on your situation. A lawyer will need to hear all the facts before being able to advise on the likelihood of making a change to your child support order.

  • There are usually a host of steps that can be taken ranging from a request to an order for disclosure. If your spouse never provides the information, it may be possible for the court to impute income to them. Imputation means the court will make and order setting out your spouse’s income based on some evidence and a judicial determination. The court will then order the child support based on that imputed income.

  • Underpaying child support is a dereliction of a parent’s duty to their child. This is a legally simple but factually difficult issue. The Federal Child Support Guidelines set out the disclosure that must be made by a parent to find the right payment of support. Underpaying is common in family law and South Coast Law Group’s lawyers have lots of experience with this issue.

  • Child support is the right of the child. Spouses cannot opt out of paying child support. If you have an order or agreement for payment, consider using Family Maintenance Enforcement Program to collect. If you do not have anything in place, your lawyer can help you get support.

  • A review of child support is a process to see if the child support being paid continues to be appropriate. Most agreements and orders provide for a review of child support. The process includes exchanging financial information. The incomes and the parenting arrangements are reviewed, and appropriate child support is determined.

  • Section 7 is referring to the Federal Child Support Guidelines which deals with special or extra ordinary expenses. This is a type of child support that is payable. It covers expenses that cannot be expected to be covered by monthly child support. Not all expenses are section 7 expenses, and your lawyer can help you determine what may or may not be covered by this section of the Federal Child Support Guidelines.

Spousal Support

  • There are three bases for entitlement to spousal support: 1) compensatory support, 2) non-compensatory (needs based), and 3) contractual. Contractual is where the parties have an agreement, usually a prenuptial/cohabitation agreement obligating the payment of support. Compensatory support is meant to compensate a spouse for the roles the parties played during the marriage. We usually see this kind of support when one party has left the workforce or reduced their work to provide more of the caregiving while the other party has focused on moving forward in their career. Non-compensatory support is commonly referred to as needs-based support. It is when one spouse demonstrates financial need, and the other parent has the capacity to pay. Entitlement to support can be complicated and is often an emotionally charged topic. You should speak to a lawyer about your entitlement to spousal support.

  • Alimony and spousal support are the same thing. In Canada we use the term spousal support.

  • The duration of support depends on the basis for support, age of the parties, and other circumstances. Generally, the support will last between one half to the entire length of the marriage like relationship. There are many factors that may change this, and you should speak with a lawyer to obtain an informed opinion of range of duration for support.

  • In determining spousal support quantum (in other words, how much?), the Spousal Support Advisory Guidelines (SSAG) is a good place to start. SSAG will provide a range of support based on the parties’ other obligations and income. There are some good free online calculators to determine what the SSAG range would be. There is wide range in amount and duration for many families. There are possibilities for lump sum support scenarios, front or back end loaded support, and ongoing reviews and variations. Spousal support negotiations allow for more room for different arrangements than the straight-forward requirements of child support.

  • Spousal support can be terminated due to a termination clause in the order or agreement, or by further order or agreement. The basis for a further order will depend mostly on your financial circumstances both during the relationship and at the time of the application.

  • Changing a parenting arrangement requires a material change in circumstances or an agreement between the parties. If a material change is found, then the best interest of the child(ren) is the only consideration to determining the new parenting time.

  • Spousal support can be terminated due to a termination clause in the order or agreement, or by further order or agreement. The basis for a further order will depend mostly on your financial circumstances both during the relationship and at the time of the application.

  • It will depend on the specific circumstances of the order or agreement but generally, 19 years of age means the child has become an adult. This does not necessarily mean support terminates. The court will look at the child’s ability to self support and need for continued support. Usually if a child is enrolled in full time education, they will still be entitled to child support.

Revising Orders / Agreements

Breach of Orders / Agreements

  • Please look at the Family Maintenance Enforcement Program (FMEP). FMEP is a free service of the BC Ministry of Attorney General helping families and children entitled to support under a maintenance order or agreement enforce such. Enrolling in the FMEP is straightforward and effective. They have ability and reach to assist you with collecting the support you are entitled to at no cost to you.

  • Disclosure of income records for child support is required by the Federal Child Support Guidelines. Applications to obtain financial disclosure are unfortunately common despite the Court of Appeal suggesting that “financial non-disclosure is the “cancer” of family law litigation” (Smith v. Smith, 2017 BCCA 319). The lawyers at South Coast Law Group are well versed in financial disclosure applications and can often create leverage to avoid the application being necessary.

  • This is an incredibly frustrating situation. Try to remain calm. You do not want your actions to provide a justification for your ex to keep your child based on your behaviour. This is a time to be tactical and consider your options. Your lawyer will assist you with how to deal with this. If necessary, your lawyer may need to bring an application to solve the problem.

Mediation

  • No, it is not the mediator’s role to provide legal advice to either party. In fact, they will probably urge you to obtain independent legal advice.

  • The cost of mediation varies according the needs of each family, the complexity of the legal issues to be resolved and the dynamics between the parties. The hourly rates of mediators vary (usually within a range of $300 to $500 per hour) and the number of sessions required to reach a final and complete resolution will also vary depending on the issues and needs of the parties. Mediation can be completed in as few as two or three hours or may take days. As each situation is unique, the cost will vary.

  • Typically, only the mediator, the parties and their lawyers (if the parties are represented) are present in a mediation. However, there are times when support people (such as a friend or family member) are present in a mediation, with the permission of the other party.

  • The role of the mediator is to remain neutral and objective throughout the entire process. Our lawyers will support and advocate for you but the mediator will remain neutral.

  • A lawyer will help to ensure that you are fully informed and making information based decisions. They will help you stay grounded and analyze your options.

  • The starting point in choosing a mediator is first gathering information about the mediator’s knowledge and training. Questions you may wish to ask include: Has the mediator been certified by a reputable agency or society? What is the nature of any formal training the mediator has undertaken? Does the mediator have any special knowledge or expertise in the area you wish to resolve?

    Finally, the most important factor in choosing a mediator, is selecting someone with whom you can create a rapport and ultimately trust to assist you and the other party to reach an enduring resolution to your dispute. Often the only way to determine that is to meet the mediator, or at least chat with them by phone.

  • Separation agreements typically start at $2,000 in legal fees for drafting the agreement. This amount does not include taxes or any negotiations that may be required.

  • A separation agreement can set out the resolution for all aspects of your relationship. The purpose is to document what is agreed to, in order to make that agreement enforceable and clear.

    Only a court can grant a divorce but a separation agreement can set out how the parties will obtain the order for divorce..

  • Yes, but it is not advisable. It is common for lawyers to have to ‘fix’ self drafted agreements. This process is far more expensive than having counsel draft the agreement in first instance. It is akin to building your own house, sure you could do it, but it will likely be riddled with mistakes and cost more to fix than to be built correctly.

  • A separation agreement is of no use if the other party will not sign it. Because of this, a separation agreement should only be drafted after the parties have come to terms on all issues to be included in the agreement.

  • To amend a separation agreement your lawyer will have to consider the provision of the agreement and what is required.

    If the separation agreement does not require any specific steps, it can generally be amended by a further agreement between the parties or by court order. The court will consider if there is a material change in circumstances that would justify a change.

    Changing a separation agreement requires consideration of the agreement, new factual circumstances and the legislation. Getting specific legal advice is advisable.

Separation Agreements

Working with a Lawyer

  • A retainer is your money that you provide to a lawyer that they will use to pay their account for work done for you. The purpose of the retainer is just like a deposit. It is to ensure that the lawyer gets paid for the work completed on your file. The retainer funds are held in the lawyer’s trust account under strict rules set out by the Law Society of British Columbia. If you ever wish to have your retainer returned to you, simply request its return. The lawyer will bill their outstanding time and apply the retainer funds. They will return the remainder to you.

  • The amount of the retainer payment will depend on the work to be done. Usually, an initial retainer is at least $2,000. If the parties are going to go to trial, the retainer can be much higher to reflect the amount of work the lawyer will have to do to prepare and attend trial. At your free initial consultation, the amount to be paid will be discussed with your lawyer.

  • Finding the right lawyer is hard and we suggest you meet with a couple. Consider lawyers and firms that have good reviews from most clients but be aware that good lawyers take hard cases and sometimes lose. A lawyer that you get along with is also important. In your initial meeting, consider the lawyer’s experience and the difficulty of your case. Be wary of lawyers that overpromise and do not point out any of the difficulties of your case. Perfect cases are like unicorns, they do not exist.

  • We recommend having a lawyer before you need one, so if you are looking at this website, you probably should be setting up a consultation. If you do not need a lawyer, we will tell you that and advise you of how to try and keep from needing one.

  • You have complete autonomy to leave your lawyer but this decision should not be made lightly. If you are not working well with your present lawyer, switching lawyers might be cost effective, but be mindful that your new lawyer will have to relearn everything your previous lawyer learned. If your currently lawyer is unsatisfactory, start by discussing this with them. Only after you have tried to fix the problem is it advisable to find a new lawyer.

Litigation Generally

  • Typically, no. The vast majority of cases settle without the need for a full trial. It is however common to attend court for various procedural and interim applications. Speaking with your lawyer about the specific circumstances of your cases will help them gauge the likelihood of court appearances and trial.

  • No. Litigation is the methodical practice of advancing your claims through the court system. There is copious amounts of background work and limited time in court. Being prepared to go to court often results in fruitful negotiations.

  • The notice of family claim is the first step in family litigation. It gives notice of the claims being made by the person filing it. When you are served with such, you have 30 days to provide a response to formally file a response to notice of family claim. If you have been served it is prudent to immediately consult with a lawyer.

  • As long as you act reasonably, you will not have to pay your spouses legal fees. There is a mechanism where a court could order special costs in the amount of your spouse’s legal fees but that is a punitive measure for inappropriate actions. Specifics of costs and legal fees can be discussed with your lawyer.

  • Yes. Litigation often creates pressure to produce negotiations. It is almost a necessity to have both negotiations and litigation occurring simultaneously.

  • This is the most commonly asked question in our consultations and the simple answer is: it depends. It is very unlikely that legal fees would be less than $1,500 and many clients spend less than $10,000. However, there are certainly files where a client will spend much more than this. It largely depends on the other party, the lawyer they choose, and the complexity of the case. Much like a teetertotter you only control what happens on your side. If one party is being unreasonable, it causes problems for the other. There are certainly cases that are more costly because of difficult legal issues, but the vast majority of cases with very high legal fees are as a result of one or both of the parties working at being difficult.

    There are many steps you can take that your lawyer will discuss with you about how to make financially appropriate decisions. We are big believers in trying to minimize legal fees and not seek unattainable objectives.

  • This can be very hard. If you have savings, this should be the first choice to use as payment for legal fees. If you do not, then borrowing from banks, friends, or family can bridge the gap until your larger assets can be made liquid. Talking to your lawyer about your budget is a good idea, it enables the lawyer to know your financial restrictions and adopt a plan that meets your financial needs.

    If you are a low-income earner and meet other specific criteria, it is possible you may qualify for legal aid through the Legal Services Society (LSS). If you do qualify, then you will be entitled to have some of your legal fees paid for through LSS with a legal aid qualified lawyer. Navdeep Dulai at South Coast Law does Legal Aid work as well as her private practice.

    There are also provisions under the Family Law Act, at section 89, that allow for an interim distribution of property to fund legal fees. If this is of interest to you, speak to a lawyer about the this possibility.

  • In most instances, we will take a retainer at the outset. We will speak to you at your consultation about how we will bill your file in a way that works for you and your lawyer. It is important to speak with your lawyer about your financial realities to plan accordingly.

  • Being prepared and organized is the best thing you can do to minimize your legal fees. Listen to our advice and be ready to make the hard decisions. Your lawyer will also work with you to make sure we can be as efficient as possible.

Affordability

Cohabitation, Marriage & Prenuptial agreements

  • Prenuptial and marriage agreement are the same thing. In Canada we use marriage agreement. They are both agreements to stipulate how the parties will act during and after the marriage. A co-habitation agreement differs in that the parties may not be married. For almost all purposes these terms are interchangeable.

  • It depends and you will want to speak with a lawyer about your specific circumstances. Often where parties have significant discrepancies in financial resources these agreements are pragmatic. A well drafted agreement provides clarity if the relationship breaks down regardless of the circumstances. Ideally it will decrease post breakup animosity.

  • An agreement usually will deal with clarifying property division, stipulate who will be entitled to any wealth generated during the relationship, set out what if any spousal support would be payable, and how the parties will manage a divorce.

    These agreements cannot deal with parenting time, and child support.