Grey Divorce

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Divorce is a challenging experience at any stage of life, but for those over 50, it brings unique complexities. “Grey divorce,” a term describing couples aged 50 and older ending their marriages, has become more common in Canada. This blog explores the reasons behind this trend, the specific challenges faced by individuals going through a grey divorce, and offers advice on navigating this life-changing event.

Grey divorce has seen a significant rise over the past few decades. Statistics Canada reports that while the overall divorce rate has stabilized or even declined in some age groups, it has increased by 26% for those 50 years of age and older. Several factors contribute to this trend, which include increased life expectancy, changing social norms, increased financial independence, and the increase in average age at marriage.

Grey divorce presents unique challenges that can be more complex compared to divorces at younger ages. Here are some key issues:

Financial Considerations

1. Division of Assets: Couples who have been married for decades often have significant shared assets, including property, investments, and retirement savings. Dividing these can be contentious and complicated.

2. Retirement Planning: Divorce can disrupt retirement plans, leading to concerns about maintaining financial stability in later years. It’s crucial to reassess financial goals and create a new retirement plan post-divorce.

3. Spousal Support: Given the long duration of many grey marriages, spousal support may be a significant issue, especially if one partner was the primary breadwinner.

Emotional and Social Impact

1. Loneliness and Isolation: After a long marriage, the prospect of living alone can be daunting. Rebuilding a social life and finding new support networks is essential.

2. Impact on Adult Children: Even though the children of grey divorcees are usually adults, they can still experience emotional turmoil. They may also face practical concerns, such as how holidays will be spent or how to support aging parents.

Health Concerns

1. Physical and Mental Health: The stress of divorce can exacerbate health problems, both physical and mental. Older adults need to prioritize their health and seek support when needed.

2. Healthcare Decisions: Couples often share healthcare plans and decision-making responsibilities. Divorce necessitates new arrangements, which can be complex and require careful planning.

Navigating Grey Divorce: Tips and Advice

Navigating a grey divorce requires careful planning and support. First, consult a family lawyer and financial advisor to address legal and financial complexities. Prioritize self-care by engaging in activities that bring joy and relaxation, and consider therapy or support groups for emotional well-being. Rebuild your social life by reaching out to friends, family, and new communities. Finally, set new goals for your future, embracing the opportunity for personal growth and fulfillment.

Conclusion

Grey divorce, while challenging, also offers an opportunity for personal growth and a fresh start. By understanding the unique issues involved and seeking appropriate support, individuals can navigate this transition and find fulfillment in their later years.

If you’re considering or going through a grey divorce in British Columbia, remember that you are not alone, and resources are available to help you through this journey.

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An Eye for an Eye: False Accusations by one Parent Against the Other in Family Law Proceedings

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There are multiple possible outcomes and effects that may come from a parent making false accusations/allegations against the other parent, and none are positive for the accusing parent. These outcomes may range from increased costs against the accusing parent to having the Ministry for Child and Family Development become involved with the family, and the accusing parent may potentially lose their parenting time.

False accusations by one parent against another, or against professionals employed in the process of the proceedings, may reflect poorly on the accusing parent’s ability to parent their child. Making false accusations has been a factor demonstrating the accusing parent’s inability to act in the child’s best interests, which is the only relevant factor when the Court is considering how to allocate parenting responsibilities and parenting time (previously known as custody). Making untrue and harmful accusations against the other parent has been found by the Court as evidence that the accusing parent is attempting to alienate the child from the other parent, an act that cannot be considered to be in the child’s best interest. Parental alienation may occur when one parent tries to get a child to hate or be fearful of the other parent. In trying to make the other parent look bad through untrue statements or accusations, the accusing parent is more likely to be hurting their own case and showing to the court that they are unable to behave in their child’s best interests. In the vast majority of cases, the child’s best interest includes fostering a positive relationship with both parents. When a parent shows they will go to extreme lengths to hurt the other parent, it demonstrates to the Court that the accusing parent is unable to put their child’s needs before their own.

When a parent makes false accusations or allegations against the other parent, the Ministry of Child and Family Development may have to become involved with the family. Depending on the nature of the false accusations/allegations, there may be serious disruptions to the child’s life. The Ministry may stay involved if they determine that the accusing parent is attempting to alienate the child from the other parent, and it may be found that the accusing parent is partaking in family violence by trying to weaponize the court process or Ministry against the other parent or the child. This kind of behaviour is not in the best interests of the child, and the accusing parent may have their parenting time supervised, restricted, or removed until they can show they can genuinely act in the best interests of the child.

The accusing parent may also have special costs awarded against them based on their conduct during the family law proceedings, which includes whether they have made false accusations against the other parent, and the nature and severity of those accusations. Generally, when a matter is brought to court, the successful party is entitled to costs. Costs awarded at Court are not intended to completely cover the legal costs of the successful party but to provide a set-off. Costs are generally set in accordance with the Tariff scale and may be increased or decreased slightly based on the complexity of the matter. In certain extreme circumstances, an unsuccessful party may be forced to pay what was previously known as solicitor-client costs, now known as special costs.

Special costs are awarded when the conduct of a party was so egregious that the courts finds that the successful party should be indemnified for all or most of their legal fees in lieu of using the Tariff scale. False accusations and allegations in many cases are likely to fall into this category, especially when there is a pattern of behaviour by the accusing parent. In other words, if a party to lawsuit conducts themselves in a way that earns the rebuke of the Court, they may be paying for both their own and the other party’s legal fees. False accusations by parents in family law proceedings have been found to be a factor the court may take into account when awarding special costs. Considering the steep costs of taking a matter to trial, this can cost the accusing parent tens of thousands of dollars just in paying for the other parent’s costs, in addition to their own costs.

To summarize, false accusations and allegations may hurt the accused parent, will almost certainly hurt the child in question, and will likely to have a profound negative effect on the parent making the false accusations/allegations. The falsely accusing parent may have special costs awarded against them, and they may lose parenting time and responsibilities with their child. They may have to be supervised when spending time with their child, or not be able to see their child at all. Parents must be able to show that they can and will act in the child’s best interest, and false accusations and allegations against the other parent (or against professionals employed during the family law proceedings such as counsellors, doctors, and ministry employees) demonstrates a parent’s inability to put the needs of their child before their own.

 

 

 

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The Death of a Child’s Guardian

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Parents are considered guardians of their children at law, and issues can arise if a guardian passes away. If a guardian passes away, there are family law rules to consider that determine who will become the child’s guardian. These considerations apply to children under the age of 19.

If two parents were the joint guardians of the child, and one passes, the surviving guardian will assume sole guardianship and all parental responsibilities, unless a Court Order or agreement states otherwise. If only one parent was the child’s guardian, and they pass, the other parent does not automatically become the sole guardian. That said, the surviving parent of a child who is not a guardian may be appointed as guardian through an application to Court under the Family Law Act. This may be the case if one parent solely raised the child, while the non-guardian parent did not spend any regular time with the child. If a child does not have a guardian for a duration of time, the Public Guardian and Trustee (the PGT) will step in. The PGT is a BC corporation with the goal of protecting individuals who do not have legal capacity, such as children.

A parent who is a guardian of a child may choose to appoint a successor guardian. The guardian can do this through their Will or specified form under the Family Law Act. It is important to remember that the successor guardian cannot be granted more rights than the recently deceased guardian. Further, appointments of successor guardians can only be made in accordance with the “best interests of the child” principles. These principles are involved in nearly all aspects of family law and require that the best interests of the child be considered, such as the child’s mental and physical well-being.

The law surrounding guardianship can be complex. The experienced lawyers at Heath Law LLP are happy to assist you with family law and other types of legal matters.

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The Federal Child Support Guidelines Child Support Table

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The Federal Child Support Guidelines Child Support Table was updated effective November 22, 2017, 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 was 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 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 increased under the 2017 Table.
The maximum annual income for which child support is specified 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.

While the changes to the Table were relatively minor, over time the difference in the amounts being paid and amounts otherwise payable 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.

Note that the Family Law Act will only allow a court to change, suspend or terminate an order respecting child support if certain conditions are met (see section 152). A court will require the parent seeking to vary the order to show that there has been a change in circumstances, evidence of a substantial nature that was unavailable when the order was made has become available, or that there was evidence of a lack of financial disclosure by a party that was discovered after the order was made. If one of the following applies to your situation, we recommend speaking to a lawyer about your options and your chances of success should you seek to change the child support amount payable or receivable.

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Secret Recordings by Parents in Family Law Cases

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In Canada, it is legal to record a party without their knowledge as long as one of the parties being recorded (which includes the person doing the recording) consents (Criminal Code s. 184(2)). However, simply because something is legal does not mean it will be admissible in court. This is especially so when it comes to secret recordings in family law cases.

A recent case in Ontario, Van Ruyven v Van Ruyven, 2021 ONSC 5963, dealt with two parties who put into evidence secret recordings they had taken of the other. The judge decided that the recordings could not be considered as evidence, and that such conduct was to be discouraged by the courts. This case has been cited by courts in BC, Alberta, and Saskatchewan, as well as Ontario, as judges caution family law litigants from engaging in the questionable activity of secretly recording one’s ex; or worse, one’s child.

Family proceedings can be extremely acrimonious. As such, some parents record the other parent or their child, in an often misguided attempt to collect evidence that the recording party thinks will amount to a “smoking gun”. However, this can often backfire and the recordings may cast doubt on the ability of the recording parent to put the needs of their child in front of their own desire to “win”. This was particularly so in K.M. v J.R., 2022 ONSC 111, where both parents secretly recorded each other, and the judge stated that parents need to be strongly discouraged from engaging in such behaviour.

The judge in that case, who had reviewed the recordings, stated in regards to the content of those recordings that

“[t]he adults were so busy arguing and screaming at each other that they didn’t seem to hear the boy say something that should have been obvious. “I’m scared.” (para 203(f)). The judge went on to say “the manner in which the recording was created raises serious questions about parental insight and sensitivity” (para 208 (e)).

In a similar situation, suspiciously obtained evidence was considered in a recent BC case: Steiner v Mazzotta, 2022 BCSC 827, where, in the context of the ongoing COVID-19 pandemic, a parent snuck onto the other parent’s property and took pictures of the parent who was with the child not wearing a mask in contravention of a previous order. The judge in Steiner admitted the picture as evidence, but stated: “Although the respondent’s poor conduct yielded evidentiary material that I could not properly exclude or ignore, such behaviour is not to be encouraged” (para 11(c)).

Note that whether or not secret recordings will be accepted by the court is up to the discretion of the judge, and that the creation and the attempted use of such recordings may backfire.

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The Effects of Bankruptcy on Family Law Orders

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Divorce is an emotionally and financially difficult process, leaving many people on the verge of insolvency. It is important for both parties to a divorce to know that while some types of debts are forgiven upon the completion of bankruptcy, many family law obligations are not. Spousal and child support obligations pursuant to a family court order are not dischargeable debts. In fact, a recipient spouse under a support order receives a preferential payout, placing them ahead of many other types of creditors in line to receive the same assets.

Costs awards in family law proceedings are categorized the same as the subject matter that the trial or application addressed, and each are treated differently in bankruptcy. A costs award following a trial dealing with support claims will be treated as a non-dischargeable debt, for instance, while a costs award following a parenting trial would be considered an unsecured claim in bankruptcy. Many trials do not deal with a single discrete issue, which risks making the categorization of a costs award on bankruptcy unclear. For this reason, it is important to consider whether the parties are at risk of insolvency at the time a cost order is made, so that costs can be apportioned per issue addressed at trial.

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Retroactive Spousal Support and Delay

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Entitlement for spousal support can be contractual, needs-based, or compensatory if one party was disadvantaged by the breakdown of the marriage. Once the court finds entitlement, they consider how long and how much should be paid for spousal support. An order for spousal support can be retroactive as well as ongoing.

In the past, some judges have declined to order retroactive spousal support or ordered a lower amount when there has been substantial delay in seeking spousal support. However, in a recent case, Legge v Legge, 2021 BCCA 365, the Court of Appeal has confirmed that where there is a clear entitlement to spousal support, a court should make a retroactive spousal support award that takes into account both the payor’s circumstances and the objectives of the spousal support, notwithstanding delay.

In this case, the parties separated after an 8-year relationship. The couple had met while the wife was pursuing post-secondary education, and decided to move to Alberta for the husband’s employment. The wife’s education was interrupted while both parties worked. They had a child together, and the wife became her primary caregiver and worked part-time. Following their separation, the wife initiated court proceedings for spousal support among other things, however, she never received a final or interim spousal support order.

Several years later, the husband commenced a divorce and property division action, and the wife counterclaimed for retroactive spousal support. At trial, the judge found that the wife had been disadvantaged by the marriage and also had a needs-based entitlement for spousal support, but that the 10 years since the parties had separated constituted undue delay. As a result, they declined to make a retroactive spousal support award.

On appeal, the court found that the trial judge had given insufficient weight to the wife’s needs and hardship, and thus the Order had failed to meet the spousal support objectives. The Court of Appeal was further persuaded by the recent Supreme Court of Canada Case Michel v. Graydon, 2020 SCC 24, which highlights the many obstacles to access to justice faced by family litigants, and requires courts to consider the reason for any delay in bringing proceedings. As a result, the Court of Appeal awarded the wife a lump sum retroactive spousal support award of $27,000.

Do you think you might have a case for a retroactive spousal support appeal?

Heath Law LLP is a full-service law firm serving Nanaimo and Vancouver Island that boasts high calibre, experienced legal counsel in divorce and family law. Review our Family Law page, meet our lawyers, or read more of our blog articles or contact us to book an appointment with one of our highly skilled lawyers.

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Family Law: Form 8 Financial Statement: Purpose and Use

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Providing financial disclosure in the course of a Family Law dispute can be overwhelming. This post is meant to be a brief guide on how and why you should complete the Form F8 Financial Statement (“F8”), and to address some common questions.

What is the F8?

The F8 requires you to be open and honest about your finances so that each party in a family law dispute, your lawyers, and the Court may know the starting point for negotiations and orders.

The F8 is a sworn document, meaning that being dishonest in completing it has the same consequences as lying under oath. Carelessness and inaccuracies in the F8 will reflect poorly on your credibility and may result in unfavorable treatment by the Courts. Many of the main issues in a family law dispute revolve around financial support and division of property, so a complete and accurate F8 is integral to resolving your dispute in an efficient, fair, and cost-effective manner.

Timelines:

The Supreme Court Family Rules require each party to exchange an F8 and supporting financial documents within 30 days of either commencing a Family Law action (for the Claimant) or from being served with a Notice of Family Claim (for the Respondent).

Structure:

The F8 is divided into six parts:

1) Part 1: Income
2) Part 2: Expenses
3) Part 3: Property
4) Part 4: Special or Extraordinary Expenses
5) Part 5: Undue Hardship
6) Part 6: Income of Other Persons in Household

Page 2 of the F8 indicates which parts to complete based upon the claims that are being made. It is important to refer to your financial documents while completing the F8. Categories like expenses and income may be difficult to ascertain, but it is important that you do not guess based on what you think your finances might be.

General Tips for Completing the F8:

Income for Those who are Self-Employed:

Arriving at your net income amount may be difficult. Some expenses, such as gas, cell phone, meals with clients, and a portion of your utilities or mortgage may be expenses that should be deducted from your gross income but not listed in Part 2 of the F8. You may wish to consult with your lawyer and accountant in completing this section.

Expenses:

Record what you actually spend. The relevant information is not what you would like to spend, or how much you used to spend before the separation. Put in your current expenses without embellishing.

If you share household expenses with another person, for instance, if you have remarried, are living with a new partner, or have a roommate, do not list the total combined amount; only record your share of the household expenses that you actually pay.

Periodic expenses should be divided to arrive at your monthly amount. If you pay some expenses annually or biannually, such as car insurance or property taxes, divide the total by 12 or 6 to come to the monthly amount.

Record expenses incurred or reasonably anticipated for the year. Some expenses, such as re-roofing or tree trimming, happen less often than once a year. If the expense arose this year, include it in the F8. If you re-roofed your home last year, then do not use that expense as an estimate of this year’s house maintenance costs, because it will not be repeated this year.

Property:

List all of the assets that you own, either solely or jointly with someone else (identify the co-owner of the property and the extent of their interest). Include assets that your spouse will not make a claim against, those that are located outside of Canada, those that you have acquired since the date of separation and those that your spouse does not know about.

You must list all of the assets that you have disposed of, including by sale or by gift, in the 2 years preceding the application. This includes assets that you owned independently of your spouse, dispositions that your spouse consented to, and assets that your spouse did not know about.

Debts should be listed in this section. A mortgage is considered a debt, and loans from friends or family should be included as well.

Changes in Circumstances:

The F8 is mostly based on information and documents from the recent past. The F8, therefore, provides a snapshot of a particular time in your financial life. If you anticipate any changes in circumstances in the near future, such as a promotion, your children moving out of your home, a change in pension income, etc., this should be listed on page 3 of the F8.

Parts 5 and 6: Undue hardship and Income of Other Persons in the Household

These sections are relevant in very particular circumstances. If you are unsure of how to complete these sections and how they apply to your situation, you may wish to consult a lawyer.

Consequences of Insufficient, Dishonest, or Lack of Disclosure:

A Court has the discretion to set a party’s income for the purposes of calculating child and spousal support if they feel that insufficient disclosure has been made. If a Court imputes a party’s income in this manner, the result could be an order for a higher amount of support than what would have been made if the party had disclosed their income.

Lack of financial disclosure at the time of the creation of a separation, co-habitation, or marriage agreement is grounds to set these agreements aside. If your agreement regarding how to divide assets is set aside, the Court has the discretion to divide the family property between the parties according to the property and support regimes in the Divorce Act (Canada) and the Family Law Act. Full and honest disclosure is, therefore, key to creating an enforceable agreement.

Finally, inaccurate disclosure can increase your legal costs by dragging out negotiations and by requiring your lawyer to continuously clarify and revise your documents.

 

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What are a Spouse’s Rights upon Foreclosure?

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When a home falls into foreclosure the property is sold to satisfy the owner’s creditors. The sale proceeds first go to the mortgagee, and then to other creditors in order of priority. Priority is generally determined based on various factors such as the type of creditor and the date of registration of the debt. In general, a judgment creditor cannot claim an interest in property beyond that held by the judgment debtor. The Court Order Enforcement Act (CEA) confirms this common law principle, and clarifies in s. 86(3)(a) that a judgment creditor’s interest is subject to any equitable interests that may have existed prior to the registration of the judgment.

In a recent decision, Chichak v Chichak, 2021 BCCA 286 the court had to determine priority between a judgment creditor with a registered judgment, and the unregistered equitable interest of a spouse.

In this case, Mr. Chichak was the sole registered owner of the property subject to a mortgage. Ms. Chichak had transferred her interest in title to him several years earlier. In 2014, Cardero Capital and First West Credit Union both obtained judgments against Mr. Chichak and registered them against the title of the property. The property was foreclosed and sold in 2016, and $312,830.83 of the sale proceeds remained after satisfying the debts owed to the highest ranking creditors. Cardero and First West applied to the courts for access to the remaining proceeds. At the same time, Ms. Chichak applied to have a 50% equitable interest in the property declared in her favour and argued that this interest should outrank the judgment creditors in priority. The chambers judge found in favour of Cardero and First West by applying the statutory presumption of indefeasibility (meaning the only valid interests in reference to the land are those that are registered against the title) and by looking at case law where transfers of title between family members had been considered gifts which extinguished the equitable interests of the giftor.

On appeal, the Court ruled that the chambers judge had mistakenly applied the principal of indefeasibility, stating that while a genuine purchaser for value would take priority over an unregistered equitable interest, a judgment creditor is not a genuine purchaser and therefore does not have the same priority. To allow the judgment creditors to take priority over the equitable interest would be to grant an interest in the property beyond what was held by the debtor, which would be contrary to the CEA. The Court allowed the appeal and sent the case back to the Supreme Court of B.C for redetermination.

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Can I be Required to Produce my Computer Hard Drive in Disclosure/Discovery?

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Disclosure is a material issue in many family law cases. Without a clear idea of each party’s assets, a fair division of property is nearly impossible. However, there are clear limits to what the courts are willing to grant in an order for disclosure. In general, an applicant must specify which individual documents or category of documents they are requesting, link their request to a live issue in the proceedings, and justify the need for the disclosure of these documents (Mossey v. Argue, 2013 BCSC 2078).

In a recent case, Etemadi v Maali, 2021 BCSC 1003, one of the parties applied for an order to force disclosure of a hard drive. A hard drive was found to have the same legal status as a bookshelf or a filing cabinet; to grant an application for disclosure of a hard drive would amount to an authorization to search, which is not in keeping with the purpose of the disclosure rules. The court, therefore, declined to grant the order for production, stating that the interest of protecting privacy and privilege outweighed the desirability of absolute disclosure in this case.

 

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