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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Family Law – 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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Family Law – 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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Family Law: 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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Family Law – 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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Family Law – 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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Family Law – Property Division: What about Season Tickets?

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The recent Alberta court decision in McLeod v McLeod addressed the issue of whether season tickets to the Edmonton Oilers that were in the name of only one spouse was part of the marital property.

In this case the couple had determined an acceptable amount for spousal support and were proceeding with a divorce. However, the divorcing couple could not reach an agreement on how to divide their beloved Oilers season tickets. As the divorce would not be finalized for some time, and the hockey season was quickly approaching, the wife applied to court for an interim property order. An interim order is a temporary order that is made before the divorce is granted.

The tickets were only in the husband’s name and the couple had used them for 11 years, primarily for family enjoyment. The husband refused to allow the wife to use any tickets for the 2017/2018 season, arguing that they were not part of the matrimonial property because, as a season ticket holder, he was only entitled to a right to purchase the tickets. Despite this argument, the Court held that the season tickets were matrimonial property and would have to be shared between the separating couple.

The Court ordered that, for the 2017/2018 season, the couple had to equally share the season tickets. Under the terms of the Court order, the couple were required to alternate choices for game tickets, including playoff tickets.

 

If you need any legal advice regarding property division, or any other family law inquiry, please click here to contact us.

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Engagement Ends. Who Gets the Ring? Family Law

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You have been in a healthy relationship for the past 2 years.  It is finally the time to ask the big question.  You present your significant other with a beautiful engagement ring which they, in turn, accept.  The wedding is scheduled for next year.  However, before the wedding ceremony takes place the relationship sours.   You and your significant other blame each other for the relationship ending.  You have asked your ex-partner for the return of the engagement ring.  Your ex-partner refuses its return claiming it to be a gift.

Who has a better claim to the engagement ring now that the relationship has ended?

In a recent British Columbia case [S. (P.) v. R. (H.), 2016 BCSC 2071], the court held that in accordance with the law in British Columbia if a gift is determined to be made in contemplation of marriage and the marriage does not take place, then the gift must be returned.

An exception to that rule comes in the form of an absolute gift.  If it can be established through the evidence of the case that the engagement ring was intended to be an absolute gift, than the ring will not be returned to the one who bought it.

Now, what if the relationship ends due to the conduct of only one of the parties?   This case tells us that fault does not factor in the decision one way or the other in British Columbia.  At paragraph 71 of that Court decision, the court stated “Fault for the termination of the engagement does not enter into the analysis.”  The test is whether the ring was an absolute gift or a gift in contemplation of marriage.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Child Support – Family Law, Separation, Divorce

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My Partner and I are Separating, Do I Need to Pay Child Support?

Introduction

A parent has an obligation to help financially support his or her children. When two people who have had a child together separate, there is a responsibility to pay child support regardless of whether the parents were married. A step-parent may also be responsible for paying child support. Although a parent will generally be responsible for paying child support, there are a number of factors that may affect how much you have to pay and for how long you have to pay.

How Much Child Support will I have to Pay?

There are guidelines that generally determine how much child support you will have to pay. These guidelines are called the Federal Child Support Guidelines. The amount you will have to pay depends on how much money you make and how many children you have. In addition to the basic amount that the Guidelines set out, you may also be responsible for a portion of other special expenses, such as daycare or the cost of braces.

It is possible that you will have to pay an amount that is different than the amount set out in the Guidelines. For example, a court may order you to pay an amount that it decides is fair in the circumstances. It is also possible to agree with the other parent to pay a certain amount of child support. This amount must be reasonable as a court will change the amount if it determines that reasonable arrangements have not been made for the support of the child.

Step-parents

Although your financial obligation may be different than the amount set out in the Guidelines, if you are a step-parent, you may also have a responsibility to pay child support. If you are a step parent, whether you have to pay child support may depend on the legislation. If you were married, you may proceed under the Divorce Act. Under the Divorce Act, you will likely be responsible to pay child support if you lived with the child and behaved like a parent towards the child.

Under the Family Law Act, you will be responsible for paying child support if you are a legal spouse of the child’s parent and you helped support the child for at least one year. You will be a spouse of the child’s parent if you were married or if you lived in a marriage-like relationship with the child’s parent for a continuous period of two years or if you had a child together. Under the Family Law Act, you will also only be responsible for child support if a court proceeding is started within one year of the last time you providing support for the child. Under the Family Law Act, a step-parent’s responsibility to pay child support is secondary to other parents or guardians and may depend on several factors, including how long the step-parent lived with the child.

How Long Do I have to Pay Child Support?

In most cases, a parent will be responsible to pay child support at least until the child reaches the age of 19. A parent’s obligation to pay child support may continue after the child reaches 19 if that child still relies on his or her parents due to illness or disability, or because he or she is going to school full-time.

If you need legal advice on this subject or any other law related inquiry please contact us.

 

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Family Law – When does Excluded Property lose its Character as Excluded Property?

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Pursuant to s. 85(1)(a) of BC’s Family Law Act,SBC c 25 (the “FLA”), property acquired by a spouse before the relationship between two spouses begins is considered “excluded property.” Because of the language of s. 81 of the FLA,and unless the court makes a determination under s. 96, excluded property is not divided equally between spouses upon separation – in other words, each party leaves the relationship with the property they brought into the relationship.

However, what happens if one spouse (“Spouse 1”) gives a gift of excluded property, for example money or a house acquired by Spouse 1 prior to the relationship, to another spouse (“Spouse 2”) during the course of a relationship? Does the property lose its character as excluded property?

Once property loses its character as excluded property it becomes family property (see s. 84 of the FLA) and, pursuant to s. 81 of the FLA, will be subject to equal division on separation unless the court orders otherwise under s. 95.

Can Spouse 1 claim that the gift given to spouse 2 was a gift of excluded property which should be returned to Spouse 1 upon separation and u not be subject to equal division between the spouses?

In the recent BC case of VJF v SKW, 2016 BCCA 186, the BC Court of Appeal considered whether a $2 million gift of excluded property given by a husband to a wife lost its character as excluded property. The Court stated at paragraph 76: “…the $2 million gift received by Ms. W does “fall back into the communal pot” on separation and is divisible as family property in the normal way. The spouses are presumptively entitled to equal shares as tenants in common….”

How does a spouse protect him or herself from such a result? The Court noted at paragraph 78 that, subject to the other relevant provisions of the FLA, “the transferor can require the transferee to acknowledge that no gift of the excluded property (or its value) is intended.”

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