Limitation Dates and Family Law

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One area where the law in British Columbia continues to treat common-law and married couples differently is how much time following the breakdown of their relationship a person has to initiate a family law claim against their former spouse.

While claims for child support are not subject to a deadline (referred to as a “limitation date”), claims for division of family property, division of family debt, division of pension entitlement, and spousal support are subject to a 2-year limitation date for initiating a claim.

The question is when the 2-year limitation period starts to run.

For common-law relationships, the limitation period begins to run on the date the spouses separate. This can be somewhat complicated, as former spouses can continue to live in the same house following separation due to their family situation (i.e. not wanting to move away from their children) or because of their financial situations (i.e. they cannot afford to maintain two separate households).  In some circumstances, the spouses may have different views on which day they separated.

For married couples, the limitation period begins to run on the date the Court grants a divorce judgment or declares the marriage to be a nullity.

As an example, either member of a married couple, separated for 6 years, is able to initiate a claim against the other for division of family property or spousal support so long as a divorce has not been granted.  For a common-law couple who has been separated for 6 years, each member lost the ability to seek a division of family property 4 years prior, i.e. two years after separation.

Section 198(5) of the Family Law Act provides that if the parties are engaged in “family dispute resolution” with a “family dispute resolution professional” (which the Family Law Act defines as being a family justice counsellor, a parenting coordinator, a lawyer, a mediator, or an arbitrator), then the running of the limitation period is suspended while they are doing so (i.e. it is put on hold).

The effect of this provision is that if certain attempts to resolve a family law dispute outside of court are made, then the ‘clock’ temporarily stops.  This would prevent a couple engaged in active negotiations from having to start court proceedings to preserve their rights just because of the passage of time.

Following the expiration of the limitation period, former spouses lose the property rights provided to them under the Family Law Act and are viewed no differently than other, arms-length individuals.  This means that unless property is jointly owned (such as a home where both parties are on title), a spouse may lose the ability to seek an interest in the property retained by the other spouse following the breakdown of their relationship.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Separation and the Family Pet

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Many people have family pets that they consider to be members of the family. However, when spouses separate, they must determine who gets to keep the pet. In British Columbia, pets are not treated like children and are considered to be property. As a result, for couples who are either married or who have lived in a marriage-like relationship for two years, any pets of the relationship are generally divided along with the rest of the property of the relationship according to the Family Law Act.

Other Considerations

If a separating couple decides to go to Court to determine who gets to keep their pet, the Court will award the pet to one of the spouses. There are a number of factors that may help determine who gets to keep the family pet, including:

  • How the couple acquired the pet and who paid for it;
  • Who pays for most of the pet’s expenses;
  • Whether one person has a closer bond with the pet;
  • Who took care of the pet;
  • Who is the registered owner of the pet; and
  • Who has been taking care of the pet since the couple separated?

Agreements

Although, many people treat their pets like children, a Judge will not order that two people share time with their pet like a Court would normally do with a child. For this reason, and because going to Court can be very unpredictable, it may be a good idea for a separating couple to come to an agreement as to how they will share time with their pet. A separating couple can agree to share a pet or otherwise resolve pet custody issues through a Consent Order or through a Separation Agreement.

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Child Support

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Effective November 22, 2017, the Federal Child Support Guidelines Child Support Table has been updated to account for tax and other changes since the previous Child Support Table came into effect on December 31, 2011.

The minimum gross annual income at which the Child Support Table applies has been increased from $10,820.00 under the 2011 Table to $12,000.00 under the 2017 Table.  As a result, the Table no longer specifies a child support amount for payors living in British Columbia with an annual income of $11,999.00 or less.

For child support payors living in British Columbia with an annual income of between $12,100.00 and approximately $27,000.00 (depending on the number of children for which support is being paid), specified child support has decreased under the 2017 Table.

For child support payors living in British Columbia with an annual income exceeding approximately $27,000.00, specified child support has increased under the 2017 Table.

The maximum annual income for which child support is specified for remains unchanged at $150,000.00.  Beyond that income, there is a formula upon which child support is based.

For example, a payor living in British Columbia with an annual income of $17,000.00 paying child support for one child will now pay $111.00 per month under the 2017 Table as opposed to $133.00 per month under the 2011 Table. A payor living in British Columbia with an annual income of $75,000.00 paying child support for 3 children will now pay $1,522.00 per month under the 2017 Table as opposed to $1,483.00 per month under the 2011 Table.

The changes to the Table are relatively minor, however, over a number of months or years may add up. If you are required to pay child support, or receive child support as a result of an order made prior to November 22, 2017, we would encourage you to consult with a lawyer to ensure that a child support underpayment, or overpayment does not accumulate.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law at 250-753-2202.

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Poor Behaviour and Parenting Time

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When Bad Behaviour by one Spouse can Impact Parenting Time

In the recent case SEV v. TMV, 2018 BCSC 30 (“SEV”), the BC Supreme Court considered whether to grant a father increased parenting time.

In SEV, the two parties, a father and mother, were married and had two children aged approximately 7 and 9 at the time of trial. The parties separated on January 2, 2015, and in January 2017 the children began spending four days and four nights with their mother, followed by four days and three nights with their father.

The Court made several findings with respect to the father’s conduct towards the mother, including that the father sent the mother offensive text messages, communicated with others negatively about the mother, including with co-workers at the parties’ place of work (both the mother and father were RCMP officers), and that the father had two offensive decals on his truck which he acknowledged were directed at the mother – a vehicle which he used to transport the parties’ children while he exercised parenting time.

The father’s conduct was such that he was formally reprimanded by the RCMP for his communications with other members of the Detachment. The father was also ordered not to park his truck on RCMP property until the offensive decals were removed, but, at the time of trial, the father continued to park his vehicle on the street close to the Detachment so he did not have to remove the decals in questions.

In determining how to allocate parenting time, the judge noted that the legal framework for the analysis regarding parenting time is set out in ss. 37-42 of the Family Law Act and s. 16 of the Divorce Act, and that the primary purpose of these provisions is for the Court to consider the best interests of the child or children.

In reaching the decision, the judge wrote:

  • He was not satisfied that it was is in the children’s best interests that the status quo regarding primary residence and parental responsibilities should be altered;
  • The father still harboured significant anger towards the mother which at times was detrimental to the children. This included the father’s steadfast refusal to remove the offensive decals from his truck, and what the judge considered the father’s “intransigence” in communicating appropriately at times with the mother regarding the children;
  • The mother, at the time of trial, was the more stable and reliable parent;

The judge also wrote:

[40]         I would add that, although I was not asked by [the mother]to make a finding that [the father’s] conduct towards her amounts to family violence as defined in s. 1 of the FLA and its assessment per s. 37 and 38, in my view it is very close to the line in that regard. The fact that [the father] continues to drive the children in his truck bearing the decals in question remains an important consideration regarding ongoing parenting arrangements. That is because it would be a simple matter to remove the decals but [the father] has chosen not to do so, notwithstanding his employer’s view of the matter and the needless ongoing embarrassment and discomfort which they cause [the mother]. They will also, at some point, no doubt be the subject of questions from the children.

As a consequence, the judge ordered a shared parenting schedule on a rotating cycle whereby the mother would have parenting time for six days, and that the father would have parenting time for two days thereafter.

 

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Resulting Trusts: Making Gifts during Your Life

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In order to minimize taxes, avoid probate fees, control distribution or to avoid estate litigation that may result from a Will, some people decide to give away some or all of their assets while they are alive. However, in some cases, giving a gift during your lifetime and outside a Will may lead to litigation to determine whether the person giving away the asset intended to give a gift.

Gifts Made During a Person’s Life

A person may make gifts during his or her lifetime by giving another person a particular item, money or an interest in property.  When a person makes a transfer of an item without receiving anything in return, the law presumes that there is a Resulting Trust. A Resulting Trust means that the person who received the transfer of the item holds the item in trust for the person who made the transfer. In other words, the person who made the transfer keeps the beneficial ownership of the transferred item because he or she did not receive anything in return for its transfer. In these circumstances, the person who received the transfer of the item has an obligation to return the item to the person who transferred it.

There are exceptions to the presumption of a Resulting Trust. For example, there is an exception where a parent has given a gift to a minor child. In these circumstances, the law presumes that the parent intended to give a gift to his or her minor child. This exception does not apply where a parent gives a gift to his or her adult children.

The person who received the gift may be able to rebut the presumption of a Resulting Trust and establish that the transfer was indeed intended it to be a gift. In these cases, the law looks to whether the person who made the transfer intended to give a gift or if they made the transfer for some other purpose (and believed that they would have the item returned). If a Court determines that the person who made the transfer intended to give a gift, no Resulting Trust will be found.

Unequal Distribution under a Will

How a person organizes their financial affairs while they are living may result in what seems like an unequal distribution of their financial assets to family members upon that person’s death. Beneficiaries may argue that, due to the presumption of Resulting Trust, gifts that the deceased made during his or her life were meant to be divided within the Will.  For example, a person may transfer a large sum of money to his or her adult child to help make a down payment on a house. In this case, the transfer may result in a smaller estate available to be shared by the beneficiaries under the Will. Beneficiaries under the Will may argue that the money advanced was only a loan and that the presumption of Resulting Trust applies such that the money should be returned to the Estate and divided according to the Will.

Making the Gift

When a person wishes to make a gift, he or she may want to clearly demonstrate that it was his or her intention to make a gift and not to have the item returned. For example, in the scenario described above, the parent may wish to create a Deed of Gift – a written document – stating that the money is a gift and that the other party does not need to pay the money back.

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Personal Injury Damages – Avoiding Homeowner Liability

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As the weather becomes colder, it is important to be aware of the increased risks that result from the accumulation of snow and ice. In Canada, property owners and occupants have a responsibility to act reasonably to remove snow and ice to ensure that their property is not slippery or otherwise unsafe. The responsibility to remove snow and ice extends to the walkways in front of the occupier’s home.

What happens if someone falls?

If a person slips or trips on snow or ice that accumulated due to the owner/occupier’s negligence in failing to keep the property safe, he or she may sue for damages to recover the losses suffered. In order for a person who suffers a slip and fall on ice or snow to prove that the owner/occupier was negligent, he or she must show that the conduct of the owner/occupier fell below the accepted standard for clearing snow and ice. People walking on snowy or icy surfaces are also expected to take reasonable care by walking carefully and wearing reasonable footwear. If a person who suffers a fall was not acting reasonably, a Court may find that he or she was contributorily negligent and may reduce any damages awarded.

Removal of Snow or Ice?

Ensuring that your property is free of ice and snow can be challenging during the winter months, particularly when temperatures are changing quickly. However, an owner/occupier must only act reasonably in the circumstances to ensure that his or her property is safe, which means clearing snow and ice within a reasonable amount of time. Determining what is reasonable will depend on a number of factors, including typical weather conditions in the area and if the snow or ice was sudden or unexpected.

In addition to an owner/occupier risking liability for damages due to their negligence for failing to keep their property clear of snow or ice, they could also be exposed to a fine from the City/Municipality where the property is located.  Many cities have bylaws that prescribe specific time requirements for salting sidewalks and shovelling driveways or walkways. For example, in Nanaimo, British Columbia, owners/occupiers must remove snow and ice from walkways within 24 hours of the snow or ice accumulating.

Although a City may set certain time limit for snow or ice removal, a Court may still find an owner/occupier liable for damages if it concludes that the snow or ice should have reasonably been removed before the time period prescribed by the City. For this reason, it is important to be careful to diligently maintain your property and walkways during the winter months.

 

 

 

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Parenting Time and Responsibilities

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On separation, a couple must decide how they will share time with their children and what responsibilities they will have in respect to each child. The implications to the couple will depend on whether legal proceedings are under the federal Divorce Act or the BC Family Law Act. A couple may only proceed under the Divorce Act if they are married; however, anyone can proceed under the Family Law Act for most matters dealing with children.

Terminology

Under the Divorce Act, the proper terms to describe parenting rights and responsibilities are “custody” and “access”. The term “custody” refers to with whom the child will live and the rights and responsibilities regarding the care of the child. The term “access” refers to the time a parent without custody, or another relative, is entitled to spend with the children.

Under the Family Law Act, the proper terms are “parenting responsibilities” and “parenting time”. The term “parenting responsibilities” refers to the ability to make decisions for the child. Guardians may share these responsibilities or one guardian may have these responsibilities on his or her own. The term “parenting time” refers to the amount of time that a guardian spends with a child and may also include smaller, or day-to-day, decision making while the child is in the care of that guardian.

Determining Parenting Time and Responsibilities

Parents may reach an agreement as to how they will share responsibilities and how much time they will spend with the children or they may apply to Court to receive an Order. A Court will determine these issues by considering what is in the best interests of the children. A Court may determine that it is in the best interests of the children to give shared rights and responsibilities to both parents, to only one parent or a combination of both. How these issues are divided may affect the amount of child support that each party is responsible to pay.

In many communities, before a parent can go to Court, he or she must attend a Parenting After Separation Course. This course discusses the effect of a couple’s separation on the parents and the children.

 

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Personal Injury – Work Related Injuries

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Whether it is a result of a slip and fall, an assault, a motor vehicle accident, or another type of accident, many people suffer injuries while working. If a person in British Columbia is injured while working, the worker should be able to recover some of their losses related to the injury. If the injured worker dies, the worker’s dependents may be able to recover losses on behalf of the deceased.

When a worker is injured, the primary question that will determine the type of compensation that can be claimed is whether the party that caused the injury or death was working at the time.

Types of Claims

In British Columbia, a person who is working at the time of the injury cannot make a claim against another individual working at the time of the accident or his or her employer. Instead, the injured person must claim through WorkSafeBC to recover any losses that he or she suffered.

However, if a person is injured while working and the other party involved is not working at the time of the accident, the injured party may be able to choose to recover any losses through WorkSafeBC or through a personal injury claim (i.e. a Court action).

A WorkSafeBC claim will compensate you for part of your wage loss or future income loss while a personal injury claim provides compensation to the full extent of all provable losses. In addition, a personal injury claim allows you to make a claim for pain and suffering, which is not compensated under WorkSafeBC.

Making the Choice

If the option is available to you to make a claim either with WorkSafeBC or to proceed with a personal injury claim, a lawyer can help you determine the best option. You must make this choice within 90 days of when the injury occurred. However, if you choose to proceed with a personal injury claim, you can also preserve your right to compensation through WorkSafeBC by filing the appropriate materials within one year of your injury. You may want to preserve your right to compensation in case your lawsuit is unsuccessful or you receive less money than you would have received through WorkSafeBC.

 

For any further questions regarding work-related injuries or to schedule an appointment with a litigation lawyer click here.

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Coping With an Unfair Will

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Sometimes a loved one who passes away does not provide proper financial support for certain people under his or her Will. For example, a parent may provide unequally for his or her children or may fail to adequately care for a dependent individual suffering from a mental or physical disability. This may leave those who relied on the deceased during his or her life without proper support. Although a person can generally dispose of his or her property on death as he or she wishes, there are certain obligations that a will-maker has to those who may rely on him or her for support. If a will-maker does not provide for these people, there may be a way to apply to Court to vary or change the unfair Will.

Who Can Vary a Will?

Certain family members who were excluded altogether or not fairly provided for in a Will can make an application to vary a deceased person’s Will.  Under the British Columbia Wills, Estates and Succession Act, only a spouse or a child of the deceased can make an application to vary a deceased person’s Will. Under WESA, “spouse” means a person who either was, at the time of death, married to the deceased or living with the deceased in a marriage-like relationship for at least two years.

Considerations in Varying a Will  

There are time restrictions to when an applicant can apply vary a Will and certain factors that may affect an applicant’s ability to successfully vary a Will. For example, an applicant must commence a Court action to vary a Will within 180 days from the date that a Court issued a grant of probate or administration.

A Court will consider the will-maker’s reasons for not providing, or not adequately providing for, the person seeking to vary the Will. For example, the will-maker’s obligations on death may be less if a child refused, without legitimate reason, to have a relationship with his or her parent. The Court will also consider whether the will-maker chose to make gifts to this person during the will-maker’s life instead of within his or her Will.

There are also circumstances in which the will-maker’s obligation to his or her spouse or children will be greater. For example, a will-maker will have a greater responsibility to a disabled spouse or child. The financial need of the person seeking to vary the Will may also affect the will-maker’s responsibility to the applicant.

 

For any further questions regarding unfair Wills or to schedule an appointment with a litigation lawyer, click here.

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Spousal Support in British Columbia

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When a couple is separating, one issue that may need to be addressed is whether one of the people should receive spousal support. Spousal support attempts to meet the needs of a spouse who is financially dependent on the other spouse. A person may apply for spousal support if he or she was married, living together in a marriage-like relationship for at least two years or for less than two years but the couple had a child together. The separating couple may resolve the issue of spousal support by agreement or in Court. The agreement or Court Order may require that one spouse pay support in the form of a regular payment or a lump sum amount.

Are You or Your Spouse Entitled to Spousal Support?

Unlike child support when children are involved, spousal support is not something that always results from a relationship breakdown. The person who is seeking spousal support must first be entitled to receive it. Entitlement is based on the objectives of spousal support, which are to:

  • encourage self-sufficiency;
  • address economic advantages or disadvantages arising from the relationship or the separation;
  • reduce any financial hardship arising from the separation; and
  • address any financial inequality resulting from caring for the children of the relationship.

In considering these objectives and whether a person is entitled to spousal support, the Court will look at:

  • who is responsible for child care and whether this impacts that person’s ability to earn income;
  • decisions that the couple made during the relationship that may have limited career opportunities for one of the spouses; and
  • any economic hardship that resulted from the separation.

Amount and Duration

Once the Court determines that the person seeking spousal support is entitled to receive support, it must determine how much spousal support the person will receive and for how long he or she will receive it. The Spousal Support Advisory Guidelines can help determine the appropriate amount of spousal support. However, the Guidelines are only guidelines and a Court does not have to follow them. The amount and duration of the spousal support will depend on:

  • each spouse’s financial situation;
  • the length of the relationship;
  • the roles that each spouse occupied during the relationship; and
  • whether the spouse seeking spousal support needs any training to become self-sufficient.

Time Limits

A person applying for spousal support under the Family Law Act must do so before two years has passed since either receiving a divorce or, if you were unmarried, since the date of separation.

A person may only apply for spousal support under the Divorce Act if he or she was married. Under the Divorce act, there is no time limit to apply for spousal support.

 

For any further questions regarding a separation or to schedule an appointment with a litigation lawyer, click here.

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