Our top Family Property Division Lawyers ensure that BC cases involving substantial family property and family debt are properly sorted out. Contact our award winning family property division lawyers toll free across BC at 1-877-602-9900. MacLean Law has been named best family law firm in Vancouver on multiple occasions by Top Choice.

Mandarin speaking Family Property Division Lawyers

Lorne MacLean, QC, the founder of MacLean Law,  heads our top rated Vancouver Family Property Division Lawyers and he handles all kinds of novel family property disputes. In a recent decision of the BC Supreme Court the court dealt with the interesting issue of banked action time, banked sick time and shareholders loans amongst other family property.

Our skilled Family Property Division Lawyers are savvy and skills in ensuring the separating spouses’ assets are fairly divided and with a minimum of disruption.

Family Property Division Lawyers

In today’s blog our Vancouver Family Property Division Lawyers deal with some of the more unusual types of property. First we deal with banked holiday time’

Banked Holiday Time? Is It Family Property?

Our Family Property Division Lawyers know that some types of assets function as sources of or replacement for income and are not property such as banked sick pay. Our Family Property Division Lawyers  ask the question -Does holiday pay change from income to property if he is cashed out instead of saved for the future? In Cole v Cole  the court held:

[87]         Though the issue of banked holiday time has not yet been addressed under the FLA, that issue has been considered under the FRA. Some of the FRA cases are, however, inconsistent with one another. [88]         The leading case in this area is Cameron v. Cameron (1994), 100 B.C.L.R. (2d) 104 (S.C.). In that decision, the Court held that past annual leave that had been accumulated during the marriage and paid out to the husband constituted a family asset.

[89]         This case was thereafter widely followed with respect to banked holiday time: Derksen v. Derksen, 2007 BCSC 542 at paras. 44-45; L.M.K. v. W.D.J.K., 2004 BCSC 871 at paras. 42-45; Clark v. Clark, [1999] B.C.J. No. 156 at para. 4 (S.C.), though Clancy J. noted that there are circumstances in which vacation or holiday pay may not be a family asset; Zander v. Zander, [1995] B.C.J. No. 444 at para. 33 (S.C.). This pattern was also followed in Hill v. Magee, 2002 BCSC 353 at para. 13, where the Court found that banked overtime which the husband had accumulated during the marriage, and converted to cash after the date of separation, was a family asset.

[90]         One case departed from these conclusions. In Davies v. Davies (1999), 50 R.F.L. (4th) 353 at para. 25 (S.C.), Smith J. concluded that the husband’s retroactive “holiday pay was income and is not a family asset”, despite the fact that it had been paid out as part of his severance package before the “triggering event”. The decision was not appealed.

[91]         These cases all address banked holiday time that had been paid out by the employer to the accumulating spouse prior to trial. Christensen v. Reid (1997), 28 R.F.L. (4th) 230 (B.C.S.C.) addressed the issue of banked holiday time in circumstances where the accumulating spouse had not yet left their employer or retired. At paras. 45-48, Drost J. chose not to apply Cameron, and he determined that unused, but not yet paid out vacation time, was not a family asset.

[92]         The most recent case to have considered banked holiday time under the FRA is Dignard v. Dignard, 2014 BCSC 1902. At paras. 85-86, Bernard J. upheld the principle expressed in Cameron, finding that the husband’s holiday pay earned during the marriage and before separation was a family asset. However, Bernard J. expanded upon this principle, stating that there was no legal difference between paid out vacation pay and banked vacation time. It does not appear that either Christensen or Davies was brought to his attention. Accordingly, he divided the husband’s accrued, but not yet paid out, holiday time.

[93]         Dignard has not yet been cited by any other court. Respectfully, I do not agree with the conclusions expressed in that decision. Rather, I consider that the approach in Christensen should be followed, for similar reasons to those that I outlined with respect to banked sick time.

[94]         Banked or accrued holiday time, like sick time, is a form of potential future replacement income. It is generally intended to be used during the term of employment and it is expected to function as replacement income when a former spouse cannot work or chooses to take vacation. It is unlike the investment vehicles outlined in s. 84(2)(e) because it is not designed to be accumulated for the purpose of retirement, even if it is sometimes paid out upon retirement.

Does It Matter If You Withdraw The Banked Time? Yes!

Our Family Property Division Lawyers thought the judge’s analysis to be well reasoned when he considered whether the holiday time is income or property and the risk if it was first divided as a family property and then if taken by a spouse after included again as income to be used for support.

[95]         I do, however, accept the proposition established in Cameron that banked holiday pay, which is paid out prior to the date of separation, should be regarded as family property. Once paid out, these funds no longer need function as potential replacement income since the party is free to obtain other employment or retire. Banked holiday pay then becomes more akin to a severance payment, which is family property; see Nitnawre v. Jagtap, 2015 BCSC 1562 at para. 146; Madruga v. Madruga, 2015 BCSC 1605 at para. 19. [96]         The Dignard approach also potentially allows a party receiving spousal support to “double dip”. A payee spouse would receive half of the payor spouse’s accumulated holiday time at the time of trial, and would receive spousal support payments from those same funds when the banked time was used. [97]         Accordingly, this aspect of Mr. Cole’s claim is also dismissed.

Don’t Make A Huge Mistake And Forget To Divide The Shareholder’s Loan

Our Family Property Division Lawyers also liked the court’s analysis on a shareholders a lion. This is an area inexperienced lawyers can fail to properly address. Our skilled Vancouver Family Property Division Lawyers know that while these loans are deducted from the value of a family business THEY MUST BE ADDED as personal family property.

[54]         I do not, however, consider that the Shareholder Loan to Mr. Cole gives rise to any indebtedness or responsibility on the part of Ms. Cole. I arrive at this conclusion in two ways.

[55]         First, I consider it obvious that if Bloomfield’s had continued to be successful as a business, Ms. Cole would argue that the business was family property and subject to equal division. Similarly, if Bloomfield’s had taken out a bank loan to finance its indebtedness, which was guaranteed by Mr. Cole, that loan would be a family debt that was payable by both parties.

[56]         What underlies this issue, however, is the fact that Mr. Cole effectively used approximately $123,500 of his personal funds, instead of a bank loan, to pay for Bloomfield’s debts. Had he chosen to obtain third-party financing, he would still have the $123,500. That $123,500 would be subject to equal division and Ms. Cole would receive almost $62,000, which would then be available to her to pay for her half of the third-party loan.

[57]         There is a second lens through which this issue can be addressed. The Shareholder’s Loan owed by Bloomfield’s to Mr. Cole is in the nature of an account receivable owed to Mr. Cole;Descantes v. Descantes, 1992 Carswell BC 1264 at para. 20 (S.C.). That account receivable, though it is unlikely to ever be repaid, is family property; Walburger v. Lindsay, 2015 BCSC 341 at para. 85. It is an amount that is owed to both Mr. and Ms. Cole under s. 84(2)(c) of the FLA. Accordingly, there is no basis for Ms. Cole to make any contribution to Mr. Cole on account of the Shareholder’s Loan.

The case also dealt with banked sick pay and found it also was not family property that could be divided.

Lorne N MacLean, QC founder of MacLean Law award winning Family Property Division Lawyers

When you have a novel family property dispute involving high stakes valuations of a business a venture, a partnership, inventions patents, stock options and the like hire Lorne N MacLean, QC or anyone of his firm’s  Family Property Division Lawyers.

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Lorne MacLean QC, Vancouver Loss of Excluded property lawyer

As Lorne N. MacLean, QC top rated loss of excluded property lawyer  warned in earlier blogs, placing property into your spouse’s sole or joint name that you have inherited, were gifted personally or that you brought into the marriage can have very nasty consequences on marriage or a relationship breakdown. When you face a huge fight over whether an asset is family or excluded property you need to hire a top, award winning law firm.

When you face a huge fight over whether an asset is family or excluded property you need to hire a top loss of excluded property lawyer from an award winning law firm. Call MacLean Law toll free at 1 877 602 9900 and hire experieinced  loss of excluded property lawyer who will help you resolve matters and move forward if you have a loss of excluded property issue. 

The British Columbia Supreme Court decisions were coming down fast and furious in favour of the excluded property remaining excluded despite registration of the property, either jointly or solely, in the name of the other spouse. One line of cases include Remmem v. Remmem 2014 BCSC 1552 (CanLII) and P.G. v. D.G. 2015 BCSC 1454, which suggested that a gift made by one spouse to the other that can be traced back to excluded property retains its status as excluded property within the meaning of s. 85.

Lorne N MacLean ,founder of MacLean Law and seasoned loss of excluded property lawyer, wants our wealthy clients and others going through relationship breakdown to know our Court of Appeal has now delivered a blockbuster decision that says the exact opposite. Once you have gifted or transferred excluded property to your spouse, it will no longer be excluded property for the purposes of equal division upon separation or divorce.

For our high net worth and ultra-high net worth Family Law clients, we cannot emphasize enough the danger this case represents for wealth preservation and asset protection. This is because executives and entrepreneurs often put property jointly or solely into the names of their spouses to protect themselves from creditors. It now seems that doing so will help one of the biggest creditors of all upon marriage breakdown: the transferor’s spouse.

In J.F. v. S.K.W 2016 BCCA 186, the main issue related to excluded property gifted by one spouse to the other during the marriage. In this case, a third party made a $2 million gift to the husband, which was subsequently used to buy property that was put solely in the name of the wife for creditor protection. The property was then sold.

After selling the property, the marriage broke down and the husband claimed that the $2 million of sale proceeds remained his excluded property, or at least “excluded property” under the Family Law Act because the proceeds were “property derived from … the disposition of property referred to” in s. 85(b.1) of the Act – that is, property derived from the disposition of the gift received by the third party. The wife’s position was that because the $2 million was used to buy property that was essentially gifted to her, the sales proceeds from such property was now family property.

The court discussed the pertinent sections of the Act at paragraphs 8 and 9:

[8] The definition of “family property” in s. 84 has been said to establish a “communal pot” (see P.G. v. D.G. at paras. 83-4) from which only excluded property is removed. The definition in s. 84(1)(a) is very broad, reaching all property owned or beneficially owned by “at least one spouse” on the date of separation. … Section 84(3) confirms the inclusion of various forms of property as well as:

(g) the amount by which the value of excluded property has increased since the later of the date
(i) the relationship between the spouses began, or
(ii) the excluded property was acquired.

[9] Section 85(1) defines “excluded property” to include inter alia property acquired by a spouse before the spouses’ relationship began, property inherited by a spouse, and gifts received by a spouse from a third party (para. (b.1)…

Top rated Vancouver family lawyers yet again

Another issue that was raised in this case was whether the common law doctrine of the presumption of advancement between spouses was effectively eliminated by the Act, or whether it remains unaffected. The presumption of advancement is a legal presumption that assists courts in determining the intention of a giftor in the context of certain relationships, such as between husband and wife. The presumption assumes that where one spouse transfers property to the other spouse, it is to be an outright gift. The onus is on the giftor spouse to prove otherwise.

After considering the Act and common law principles, the Court of Appeal held that the gift was no longer excluded property under s. 85 of the Family Law Act, but rather family property that should be evenly divided. Once the husband had gifted the property to his wife, the exclusion was lost. He “derived” no property or consideration from the disposition and thus, s. 85(1)(g) was not applicable. The court stated that the excluded property regime is not a “complete code” that “descends as between the spouses” upon separation, but rather builds upon existing common law and equitable principles, preserving concepts such as gifts and the presumption of advancement. At paragraphs 74 to 77 to court stated:

[74] … the new FLA scheme does not constitute a “complete code” that “descends as between the spouses” and eliminates common law and equitable principles relating to property. Rather, the scheme builds on those principles, preserving concepts such as gifts and trusts, and evidentiary presumptions such as the presumption of advancement between spouses. Thus I find that the gift of (slightly less than) $2 million made by Mr. F. to Ms. W. became her property and was “property owned by at least one spouse” under s. 84, as opposed to “property derived from the disposition of [excluded] property” within the meaning of s. 85. At the time the definitions are applied – the date of separation – the fact Mr. F. had originally received the $2 million as a gift was no longer relevant. He lost the exclusion when he voluntarily and unreservedly directed that the West 33rd property be transferred to Ms. W. and ‘derived’ no property from that disposition. [emphasis added] [75] I do not interpret the FLA as reversing the gift or requiring that it be ignored because of the spouses’ separation. …. [76] Contrary to the suggestion made in P.G., moreover, 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. The fact s. 95 does not list the same set of factors previously listed in s. 65 of the FRA is, with respect, a choice made by the Legislature. (See Ward v. Ward 2012 ONCA 462 (CanLII) at para. 25.) The FLA is not to be interpreted by means of a comparison of the fairness of its provisions with those of the FRA.

Regarding the presumption of advancement, the court held at paragraph 77:

[77] In the absence of a clear statement abolishing the presumption of advancement, I also conclude that it continues to apply under the FLA (although I would not necessarily refer to it as a “right” within the meaning of s. 104). Had the Legislature intended to abolish the presumption, it would have been an easy thing to so state, as other provinces have done. It would also be an easy matter to provide, or perhaps clarify, that the presumption applies to common law as well as formal marriages and even that it should apply to gifts from a wife to her husband, not just the reverse. ….

What does this mean for MacLean Law’s high net worth and ultra-high net worth Family law clients?

If you receive a gift or inheritance from a third party, be warned that if you put the property in your spouses name, even if it is just for the purpose of creditor protection and even if you intend to retain the property as your own, upon separation, the property will no longer be excluded property and will be family property and subject to equal division. If you have a difficult excluded property question call us at 1 877 602 9900 or request a consultation. Lorne MacLean, Q.C. and Amalia Schön are ready to answer your questions and face any challenges you have to protect your property in the event of a marriage breakdown.

You need a top loss of excluded property lawyer

Call MacLean Law family property division lawyers today toll free on 1 877 602 9900 in Vancouver, Surrey, Fort St. John or Kelowna – we can help protect your assets and make sure they remain excluded property upon separation or divorce! Hire a loss of excluded property lawyer from MacLean Law  who knows the strategies to prevent an unpleasant result.

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BC Family Law Arbitration awards can now be filed in the BC Supreme Court. Privacy from public scrutiny that attaches to a court judgment and the ability to tailor the process to meet the needs of both parties and their children is an obvious benefit of BC Family law arbitration awards. BC family arbitration awards can now be filed in BC Supreme Court but remember to have the family law arbitrator protect your privacy. You may include a number of schedules so that privacy may be maintained in some areas of the award while others may be filed. Our lawyers act as arbitrators and we also help our clients obtain the best possible BC family law arbitration awards for our medium to high net worth family law clients.

Click here to meet with our skilled BC Family Law Arbitration Awards team today. Contact Our BC Family Law Arbitration Awards lawyers toll free across BC at 1-877-602-9900

Audra Bayer Family Law Arbitration Awards lawyer

The latest CBA British Columbia newsletter gives us a – BC Family Law Arbitration Awards Update

MacLean Law BC’s largest and most experienced family law negotiation, mediation, arbitration and litigation teams in Vancouver and at our other 3 offices located across BC. We have 3  senior family mediators, family law arbitrators and child parenting coordinators that can capably assist you in reaching a prompt resolution of your family law case. Our Vancouver family mediators, Vancouver parenting coordinators, and BC family arbitrators can also help you with BC marriage and cohabitation agreement negotiations and separation agreement preparation.

Shelagh Kinney Senior Parenting Coordinator

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6 Most Common Misconceptions about Divorce Explained By Our Top Rated Vancouver Divorce and Separation Lawyers

MacLean Law’s top-rated Vancouver divorce and separation lawyers listen to their clients and patiently explain the law while crafted solutions that let them move forward successfully. Our Vancouver Divorce and Separation Lawyers were rated once again Vancouver’s best family law firm and we  have compiled a list of 6 most common misconceptions about divorce that people tend to have. Contact us early on to find out what your rights are.

Our top rated Vancouver Divorce and Separation Lawyers operate across BC out of our 4 offices located in Vancouver, South Surrey, Kelowna and Fort St John BC. Call us toll free at 1-877-602-9900 to help focus you on resolving your case as quickly and with the least stress possible.

Vancouver Divorce and Separation Lawyers Mandarin and Cantonese fluent team

1. The “legal separation.”

Our skilled Vancouver Divorce and Separation Lawyers know many separating parties mistakenly believe that there is such a thing as a “legal separation”, as if one needs to have go through some form of legal procedures to separate from his/her spouse. Some non-lawyers often use the term when they mean a separation agreement, or because they expect that there is some process that will make spouses “officially separated.” The fact is anyone is entitled to separate without first speaking to a lawyer or judge. What lawyers assist with is the settlement of legal issues.

However, it should be noted that the concept of “separation” itself is not necessarily a simple one. Depending on the circumstances, two spouses can be “separate and apart” when they still live in the same house. Because the date of separation is a decisive point in most divorce claims (such as division of property), its determination is often the focus of many litigations arising out of family disputes.

2. The “common-law marriage.”

Our Vancouver Divorce and Separation Lawyers also know that contrary to some people’s belief, there is no such thing as “common-law marriage”. People who are living together are not married and do not need to get a divorce to end their relationship. They do however have rights similar to married couples for spousal and child support and since March 2013 property rights if the parties have lived together in a marriage like relationship of over 2 years.

3. Parenting schedules and child support.

Vancouver Divorce and Separation Lawyers at MacLean Law know that some departed parties believe that support is a fee paid in exchange for time with a child, or, conversely, that a right to spend time with a child only exists so long as child support is paid. These are in fact independent rights and obligations.

4. Settlement during litigation.

Some people are unaware that commencing a court action does not preclude settlement without trial. As a matter of fact, our Vancouver Divorce and Separation Lawyers explain to our clients that the BC court has repeatedly emphasized that settlement is not an add-on, but a preferred alternative to going through the whole litigation process. Roughly 5 % of matters going to trial. Mr. Lorne MacLean, QC is know as a fierce adversary in court and this helps many cases of his to settle favourably for his clients.

Vancouver divorce lawyer and MacLean Law founder Lorne MacLean, QC

5. Effect of misconduct.

Our Vancouver Divorce and Separation Lawyers set the law in Canada on how misconduct can be considered upon relationship breakdown in the infamous case of Leskun v. Leskun.It is frequently assumed that fault attaches to adultery and that support and issues about the care of children or division of property may be used to punish an adulterous or abusive spouse. This is not true. While adultery is one of the three grounds for the court to grant a divorce, it does not necessarily play a role when it comes to division of property or support issues. Our skilled Vancouver Divorce and Separation Lawyers will explain to you how misconduct is relevant and when it is not.

6. Equal Distribution of Property.

Some believe that a couple’s family properties are always equally distributed to each of the spouses upon divorce or separation. While equal division is the presumption (or the “starting point”, so to speak), division of family property is often much more complex and require innovative strategies and careful analysis. Under the Family Law Act, certain properties that may otherwise appear as “family properties” can be excluded from family properties, allowing their owners to keep 100% interest of them. The court also has broad discretion to “override” the equal division presumption if it is convinced it would be “significantly unfair” to follow it strictly. In addition, the existence of marriage agreements and/or separation agreements can bring complications to division of property as well.

Contact MacLean Law

Divorce is a serious matter to all of us. It can be especially complex for high net-worth individuals, whose cases require the aid from lawyers with extensive experience in high net-worth divorce.

As BC’s top-rated family law firm, MacLean Law is committed to providing our clients the best legal services possible and guiding them through the difficult time of their lives using innovative strategies and solid, hard work. Our founder, Lorne MacLean Q.C. handles exclusively high net-worth divorce cases. We have offices across BC, including Vancouver, Surrey, Kelowna and Fort St. John. Please feel free to contact us by calling our toll-free line: 1 877 602 9900.

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Our family arbitrators and parenting arrangements lawyers are at the leading edge of a new family law resolution process.  Many questions remain to be answered. How much power and authority should be granted to an arbitrator in a family arbitrators and parenting arrangements dispute? Can a family arbitrators and parenting arrangements dispute that is heard by an arbitrator allow the arbitrator the power to overrule or vary a Judge’s order?

MacLean Law family arbitrators and parenting arrangements lawyer Nick Davies 604-602-9000

Can a family law arbitrator change parenting arrangements contained in an order?

Our skilled family arbitrators and parenting arrangements lawyers act both as family arbitrators and for family law clients who are participating in the family law arbitration process. Our family arbitrators and parenting arrangements law offices are conveniently located in 4 locations across BC in downtown Vancouver, Surrey, Kelowna and Dawson Creek Fort St John.

Our family arbitrators and parenting arrangements know that since the Family Law Act and Arbitration Act were amended to facilitate the arbitration of family law issues, British Columbia courts and family law arbitrators find themselves in shallow waters given the dearth of case law relating to family law arbitrations. For guidance, family law arbitrators will turn to cases which have considered the same issue in other areas of law.

Family Arbitrators and Parenting Arrangements

An interesting question arises with respect to parenting arrangements. If an order contains terms governing parenting arrangements, can a family law arbitrator vary the parenting arrangements in the order and, if so, under what circumstances? Our skilled family arbitrators and parenting arrangements lawyers recently argued this point in BC Supreme Court.

The Court should give great deference to the desire of the parties to resolve issues relating to matters in the order. However, in Central Okanagan (Reginal District) v. Westbank Indian Band (1996), 20 B.C.L.R. (3d) 97 (C.A.), [1996] BCJ No. 380 the Court drew the distinction between an arbitrator deciding an issue arising out of the order, and changing he order itself. The question is, can a family law arbitrator change the order itself in a family arbitrators and parenting arrangements case?

Nick Davies of our family arbitrators and parenting arrangements team

Some family arbitrators and parenting arrangements lawyers argue that the Family Law Act entrenches the notion of judicial deference to arbitration provisions in ss. 4(b), (c), s. 6(3) and s. 44(1)(d) of the Act. If the parties have agreed a family law arbitrator should resolve the issues between them, then shouldn’t that include variation of the order that governs their relations as that is clearly what the parties intended?

Others argue that an arbitration agreement which gives a family law arbitrator the jurisdiction to vary an order regarding parenting arrangements amounts to an agreement to remove the Court’s jurisdiction to vary a parenting arrangement contrary to s. 2(2) of the Arbitration Act, which reads as follows:

A provision of an arbitration agreement that removes the jurisdiction of a court under the Divorce Act (Canada) or the Family Law Act has no effect.

Supporters of this argument point to Merrell v. Merrell (1987), 11 R.F.L. (3d) 18 (B.C.S.C) as authority for the proposition that an arbitrator purporting to vary an order under the Divorce Act in effect removes the Court’s jurisdiction.

In Merrell the former husband applied to vary the support provisions of the divorce decree pursuant to the Divorce Act, 1985. The parties were divorced in 1974. Prior to separating in 1973, the parties entered into a separation agreement which was incorporated into the divorce decree. The agreement stipulated that the parties would submit to arbitration if either of them sought to vary the support provisions:

The wife objected to the fact that the husband proceeded to Court rather than arbitrating.

After considering other procedural arguments, the Court concluded the husband could not be prohibited from applying to Court because section 2 of the Arbitration Act preserves the jurisdiction of the Court with respect to variation of an order for support pursuant to the provisions of s. 17 of the Divorce Act. The same logic would apply with respect to an attempt by a family law arbitrator to vary an order governing parenting arrangements. The power to change, suspend or terminate an Order governing parenting arrangements would be reserved to the Court by virtue of s. 2(2) of the Arbitration Act. 

The difficulty with the Merrell interpretation of s. 2(2) of the Arbitration Act is that if taken literally it would mean that any attempt by a family law arbitrator to exercise jurisdiction with respect to parenting arrangements or any other issue governed by the Family Law Act would remove the Court’s jurisdiction to do so and thus would be ultra vires the arbitrator.

The answer could lie not in the nature of the arbitration agreement, but in the nature of the legislation. The Court’s authority in s. 47 of the Family Law Act to “change, suspend or terminate an order” is a remedial provision. Our family arbitrators and parenting arrangements argue that perhaps parties should not be allowed to contract out of the Court’s jurisdiction to remediate a situation, and give that jurisdiction to a family law arbitrator, unless the arbitration agreement sets out the intention of the parties to do so in the clearest of terms – O’Connor v. O’Connor, [1990 O.J. No. 293 (Ontario Provincial Court – Family Division.   If this line of thinking is correct, then a family law arbitrator cannot vary a court order made pursuant to the Family Law Act unless the parties have first turned their mind to the possibility and agreed in the arbitration agreement that the family law arbitrator may not only decide issues arising from the order but may change the terms of the order itself.

Nick Davies of our family arbitrators and parenting arrangements team in action

If the thinking in O’Connor is correct, can it be reconcile that with the thinking in Merrell? It is arguable that the proposition Merrell is cited for involves a flawed logic. Simply giving a family law arbitrator the jurisdiction to vary a court order does not “remove” the Court’s jurisdiction. The Court retains the jurisdiction to oversee the exercise of a family law arbitrator’s jurisdiction. A party who disagrees with the decision of a family law arbitrator still has the right to appeal the ruling of a family law arbitrator either on the basis that the arbitrator made an error of law, or that the arbitrator made an error with respect to a mixed question of law and fact.

With respect to parenting arrangements, the question of what is in “the best interests of the child” is as mixed question of law and fact. Thus our family arbitrators and parenting arrangements lawyers argue that parties can give a family law arbitrator the jurisdiction to vary a court order containing parenting arrangements without offending s. 2(2) of the Arbitration Act provided they understand that the arbitration agreement cannot prohibit either party from appealing the family law arbitrator’s decision to the extent it relates to parenting arrangements.

In summary, parties or lawyers drafting an arbitration agreement in a family law proceeding should consider the following:

1. Do the parties wish the family law arbitrator’s jurisdiction to include the ability to change the parenting arrangements? If so, that intention should be clearly stated in the arbitration agreement;

2. The parties cannot agree that there will be no appeal from the decision of a family law arbitrator respecting parenting arrangements.

Call us toll free at 1-877-602-9900 to find out your rights and obligations in a  family arbitrators and parenting arrangements case or in any family law matter you may be involved in.

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MacLean Family Law and its team of  Calgary Divorce and Separation Lawyers  is proud to announce its expansion into Calgary, Alberta effective June 1, 2016. Our Calgary Divorce and Separation Lawyers have opened a new office located on the 10th floor in Banker’s Hall.

Call us toll free at 1-877-602-9900 and mention the word “Stampede” for a half price initial consultation if you reside in and you meet with us in Calgary. This offer is  valid for the month of June 2016 only so don’t delay.

Top rated Vancouver family lawyers yet again

MacLean Family Law is British Columbia’s largest family law firm and it is also one of the most experienced family law firm’s in Canada. Our firm has acted in Calgary on select high net worth financial support and property division relationship breakdown cases as well as complex child custody and parenting arrangement disputes. We are now committing to assisting our high net worth oil patch clients in Calgary on a broader basis.

Our Calgary divorce and separation lawyers appear in the Calgary Court of Queen’s Bench and Alberta Court of Appeal.

Calgary Divorce and Separation Lawyers

Our Calgary Divorce and Separation Lawyers act for spouses involved in Calgary and Alberta relationship breakdowns involving the Alberta Family Law Act, Divorce Act, Alberta Adult Interdependent Relationships Act and Alberta Matrimonial Property Act:

• in shared and sole custody and parenting arrangement cases
• in Calgary spousal support and child support cases cases involving high net worth business owners, professionals, entrepreneurs and executives and their hardworking spouses focused on high net worth exceptions for spouse’s who share custody, who have incomes over $150,000 for child support disputes and who have over $350,000 for spousal support disputes,
• in cases involving family property division and particularly in cases involving businesses, professional practices, joint ventures, partnerships and investment portfolios and developments.
• in matrimonial property and exempt property and equitable division of property
• in valuation disputes and distributive tax and capital gains tax disputes
• trust disputes where one of the spouse’s controls or is the beneficiary of a trust
• wealth and asset protection and preservation strategies
• family gifts, loans and debt disputes
• reproductive technology and ART agreements
• negotiation preparation of cohabitation, marriage and separation agreements
• mediation, arbitration and litigation
• grey divorce disputes involving retirement, re-partnering and double dipping arguments

Lorne MacLean, QC is proud to have appeared in the Supreme Court of Canada more than once and in the BC Court of Appeal on multiple occasions. It is no surprise that his reputation as a fearsome adversary leads to a number of settlements in cases that he is involved in.

Our Calgary divorce and separation lawyers look forward to meeting with you to help you resolve matters. Call us today at 1-877-602-9900.

Calgary Divorce and Separation Lawyers founder Lorne MacLean,QC

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Our top rated Vancouver separation agreement lawyers routinely negotiate and mediate Vancouver separation agreement cases. We will negotiate full disclosure in any case involving a Vancouver separation agreement and explain to our clients how fairly negotiated agreements need to be followed to avoid any nasty surprises. Unfair separation agreement cases permit the court options to set aside or vary the agreement for noncompliance with rules of fairness and principles under our divorce legislation.

It pays to hire Vancouver’s top rated family law firm as awarded by Top Choice Awards again this year. Call us till free at 1-877-602-9900 or click here.

Vancouver separation agreement lawyer Lorne MacLean, QC

What happens when one party refuses to follow a Vancouver separation agreement?

Our Vancouver separation agreement lawyers know that a party who breaches (refuses to follow) a Vancouver separation agreement can be the subject of a claim for damages for breaking the deal that can include being ordered to imply with the terms of the deal or allowing the other party to exercise the right to make claims that were waived under the old Vancouver separation agreement.

What options are available to the party who wants the Vancouver separation agreement enforced?

Top rated Vancouver family lawyers yet again

In the Vancouver separation agreement case of Owen v Owen the Vancouver separation agreement by a husband who had a decline in income related to a poorly performing stock market.

As you will see when you read the judgment below the wife was allowed to come back after the husband who had breached the contract, caused her financial distress and forced her to hire lawyers to seek an even higher amount of support. The husband unsuccessfully tried to pay up the arrears of support but the court was unimpressed and ordered him to pay more.

Repudiation

[12]         As stated earlier, starting in October 2008, the respondent failed to pay the claimant $20,000 per month spousal support. He paid varying amounts to her based on 50% of what he said came through his account monthly in the way of commissions and capital gains. [14]         Both parties rely on the British Columbia decision of Smith v. Lau, 2004 BCCA 443, 243 D.L.R. (4th) 236, for the law applying to the breaches of obligations under matrimonial agreements. [15]         Newbury J.A., speaking for the majority, acknowledged that a commercial contract brought different considerations to bear than one between former spouses or common law partners. In addition, the court retains jurisdiction to vary the terms between the parties insofar as such terms affect children or support. However, Newbury J.A. also stated that family agreements are not immune from basic principles of contract law, including those relating to repudiation and fundamental breach. [16]         In McVeetors v. McVeetors, 15 D.L.R. (4th) 105, 43 R.F.L. (2d) 113, the Ontario Court of Appeal (leave to appeal to the SCC refused) relied on English authority when it found that separation agreements, in particular, could and should be construed according to principles of general contract law. At para. 15 the Court stated:

Separation agreements in form and effect are similar to other contracts, as Lord Atkin said in Hyman v. Hyman, [1929] A.C. 601 at 625-6:

Full effect has therefore to be given in all Courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial Courts seems to suggest that at times they are still looked at askance, and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake.

[17]         Finally, in Freake v. Freake, 2004 NLCA 39, 50 R.F.L. (5th) 1 at para. 51, Cameron J.A. allowed a wife, in a case where her husband had failed to make spousal support payments contemplated in an agreement, to repudiate the agreement for fundamental breach, terminate future performance, and sue for damages suffered to date.

[18]         Whether a contract has been repudiated and the repudiation accepted is a mixed question of law and fact. [19]         Levine J.A., dissenting as to result only in Smith, referred to this statement of Fridman in The Law of Contract in Canada, 3d ed. (Toronto, Ontario: Thomson Carswell, 1994) at p. 570:

The basic test comes down to the simple, if not obvious one of deciding what is the real purpose of the contract, the true benefit intended to be obtained by the injured party, the extent to which the misperformance by the defendant goes beyond falling short of what was desired by the victim of the breach and involves the complete denial to him of any benefit from the performance that was provided.

[20]         Levine J.A. concluded with the statement that:

The test is not what the “misperforming” party intended, but whether [that party’s] conduct amounted to a complete denial of any benefit of the agreement to the other party.

[21]         The fact here is that the respondent’s conduct resulted in a denial of the benefit of the contract to the claimant. As counsel for the claimant submitted, it was not only the quantum of the spousal support that was a benefit to the claimant under the Agreement, it was the certainty and security of setting a specific sum which the claimant could expect to receive every month for the next three years. From that she could budget, invest and control her own financial resources and make decisions independently of the respondent. Instead, the respondent continued to control her by controlling the extent to which he unilaterally decided he would support her. The claimant was expected to gratefully receive whatever the respondent chose to pay, as though his obligations under the Agreement carried no weight.

[22]         The respondent submits that the Agreement provided additional benefits to the claimant in areas of custody, access and property division from which he did not deprive her. However, the evidence establishes that there was never any dispute regarding custody or access to S who was 15 or 16 years old at the time. The equal division of the family assets did not provide a “benefit” to the claimant. In fact, it was the respondent who received the benefit of an equal division of family assets without exposure to a reapportionment of family assets or compensation order. The respondent also received a benefit in that the amount of spousal support in the Agreement was $5,000 per month less than that which Master Taylor had ordered on an interim basis.

 

[23]         I accept the evidence of the claimant that the reason she consented to the Agreement was for the sake of certainty, finality and the end of legal proceedings. Instead, she found herself embroiled with the respondent in an ongoing dispute trying to collect the support payments. She continued to incur legal costs in opposing the respondent’s application to cancel the arrears and reduce spousal and child support payments. She lost the opportunity to manage and invest the compensatory portion of her spousal support. It was only when the claimant gave up trying to enforce the Agreement and advised the respondent that she accepted his repudiation that the respondent offered to make good on the Agreement.

[24]         In my opinion, it is too late for the respondent to offer to pay the arrears under the Agreement because the claimant has lost three years of certainty, security, investment opportunity and litigation-free living. She is entitled to treat the respondent’s breaches as a repudiation of the Agreement because these breaches substantially deprived her of the fundamental benefit of the contract.

[25]         I am fully aware that in an arm’s length commercial contract, one party’s expectations may be dashed by a breach of performance by the other party, and yet the contract is not considered to be repudiated. However, in my opinion, the dynamics in a family law contract are somewhat different in this regard. What might be described as the esoteric benefits to a non-earning payee spouse of certainty, security and escape from “purse control” of the other spouse, can sometimes, as in this case, form the fundamental basis of an agreement. The removal of these benefits by the payor spouse can constitute a breach that goes to the root of the contract, is not compensable in damages, and amounts to a repudiation of the agreement.

[26]         I find that the non-performance by the respondent of his obligations under the Agreement amount to a repudiation of it and that the claimant was entitled to and did accept the repudiation. Thus as of June 30, 2011, the date upon which the claimant elected to accept the repudiation, the Agreement was no longer enforceable between the parties with respect to future obligations under the Agreement.

If you are negotiating an important Vancouver separation agreement you need lawyers who negotiate, enforce and seek to vary Vancouver separation agreements on a daily basis. Hire one of the seasoned lawyers at Vancouver’s largest and most highly rated family law firms. Call us at 1-877-602-9900 to meet with us at any of our 4 offices located across Bc and in Calgary Alberta to obtain the best possible result in a Vancouver separation agreement case.

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Our Surrey separation agreement lawyers are pleased that our new BC Family Law Act encourages out of court settlements. The new law also emphasizes that separation agreements are a viable, independent and binding option for resolving family law disputes involving child parenting, support and property division and valuation disputes. Out of court settlements have always been the preferred route for our experienced Surrey separation agreement lawyers.

Surrey Separation Agreement Lawyers Lorne N. MacLean, QC, Spencer MacLean and Tal Wolf

Award Winning Lawyers- Best Family Law Firm In Vancouver

Our award winning senior Surrey separation agreement lawyers have successfully negotiated and mediated hundreds of Surrey and Vancouver separation agreements. Our  special ability to find creative solutions that meet the needs of both parties to resolve matters and to enable them to move forward is appreciated by our clients. We are proud to have been voted as the best family law firm in Vancouver by prestigious Top Choice Awards for 2 out of the last 3 years.

The successful settlement rate for our Surrey separation agreement lawyers is 95% even after court proceedings are initiated.

Our Surrey separation agreement lawyers know that it is prudent to start court proceedings to:

• preserve property and keep spouses and children safe
• to obtain proper financial disclosure under oath and
• to set a trial date so there is a firm endpoint for a deal to be reached or having a judge decide the financial and parenting arrangement issues.

Surrey Separation Agreement Lawyers

Our Surrey separation agreement lawyers also know that our new BC Family Law Act mandates that fair agreements will be entitled to considerable deference but  unfair ones where:

• non-disclosure occurred or;
• inappropriate pressure and tactics were used

will not not be sanctioned, approved of or upheld by the courts when faced with applications to vary or set aside Surrey separation agreements that are deficient and unfair.

Lorne N. MacLean, QC suggests that in addition to full disclosure with accurate valuations being obtained the parties to a separation agreement can be videotaped and examined under oath on the video as to whether they have disclosed all their assets and whether they accept the fairness of the negotiations and the valuations of the family property and the support terms.

I tell my clients full disclosure of all property whether excluded or family property is critical and actual valuations of land, stocks, real estate and companies is very important to making a fair agreement that will stand the test of time. I say in jest “only disclose the assets you want to keep or fairly divide because the ones you don’t list will likely be divided up later by a court who will take a dim view that an asset was not disclosed or foolishly omitted from the agreement.

Surrey separation agreement lawyers office reception

Setting Aside Separation Agreements For Non-Disclosure

Agreements made without appropriate disclosure may be set aside if they are challenged in property division and spousal support cases under the following sections:

• section 93 allows for the setting aside of agreements regarding property,
• section 164 allows for the setting aside of agreements regarding spousal support,
• If an agreement is set aside based on one party’s non-disclosure, section 214 gives the court the power to penalize the non disclosing person if they deliberately withheld disclosing significant property
• one of the reasons our Surrey separation agreement lawyers start a court proceeding is because then the the court has the power to order disclosure under sections 212 and section 213 and remedies for incomplete or misleading disclosure. These sections

Types of Clauses To Consider

The BC Law Society Drafting Checklist for Separation Agreements lists the following topics to be considered:

1. Date of Agreement

2. Names and Addresses of Parties

3. Recitals

4. Introductory/Interpretation Clauses

5. Guardianship

6. Parenting Arrangements

7. Contact with Child (If Applicable)

8. Child Support

9. Spousal Support

10. Responsibility for Debts

11. Division of Property

12. Provision for Death

13. Substantive Terms with Third Parties

14. General Clauses

15. Schedules

16. Appendices

Non Disclosure is The Cancer of Family Law Litigation

In a nutshell you are required to make full disclosure yourself and you are also entitled to full disclosure from your spouse, no more no less. Non-disclosure has been called the cancer of family law litigation. Our Surrey Separation Agreement Lawyers recently obtained special costs from a non-disclosing party for a Bc Supreme Court action and our Surrey separation agreement lawyers also had the opposing party’s pleadings struck for failure to obey court orders and and further orders limiting their participation at trial.

Surrey separation agreement lawyers, team leader John Nelson

Our skilled Surrey Separation Agreement Lawyers won’t tolerate non-disclosure and neither should you!

Call us toll free at 1-877-602-9900 to meet with us in our Surrey office or any of our 3 other offices located in Vancouver, Kelowna and Fort St John, BC.

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Our top rated Surrey protection order lawyers make it a priority to ensure our clients and their children and other family members are kept safe in stressful and volatile Surrey family law disputes. Our Surrey Protection Order Lawyers are often asked what the test is to obtain a Surrey family protection order. In today’s blog Naseeb Kahlon, one of our skilled Surrey protection order lawyers, will first explain set out the legislation under our Family Law Act.

Surrey protection order lawyers team member Naseeb Kahlon

Award Winning Family Law Firm

MacLean Law is BC’s largest and one of Canada’s most experienced family law firms. We are proud to be repeat winners of Top Choice Award’s best family law firm in Vancouver. We have 4 offices across BC located in South Surrey, Vancouver, Fort St John and Kelowna. call us toll free at 1-877-602-9900. If there is any risk to you at all our Surrey protection order lawyers urge you to pick up the phone immediately. If you feel a protection order is unfairly sought against you contact us on an urgent basis as well.

Top rated Vancouver family lawyers yet again

Surrey Protection Order Lawyers Explain Legislation To Protect Persons

Our Surrey protection order lawyers  know that under the s. 183 of the Family Law Act (FLA), the court may grant an order for the protection of persons. The court will grant protection orders when there is a finding that family violence is likely to occur and that a family member is at risk by another family member. A “family member” and “family Violence” is defined as the following under the FLA:

“family member” means

(a) your spouse or former spouse,

(b) a person you are living with, or have lived with in a marriage-like relationship,

(c) the parent or guardian of your child,

(d) someone that lives with you and is related either:

(i)  to you, or

(ii) to the person referred to in paragraphs (a) to (c)

(e) your child,

and includes a child that is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e);

What Is Family Violence?

As our Surrey protection order lawyers  explain to our clients, the definition of “family member” is not limited to parties to the litigation and a spouse can seek an order protecting them from a family member that is not the opposing spouse in the litigation. For example, a party could seek protection from an adult child who sided with one parent in the litigation and was threatening the other parent.

“family violence” includes

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b) sexual abuse of a family member,

(c) attempts to physically or sexually abuse a family member,

(d) psychological or emotional abuse of a family member, including

(i)   intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii)   unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

(iii)   stalking or following of the family member, and

(iv)   intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

Pursuant to s. 182 of the FLA, an at risk family member is a family member whose safety and security is or is likely at risk from family violence carried out by a family member.

What Factors Do Our Surrey Protection Order Lawyers Argue In Court To Get An Order?

As set out in s. 184 of the FLA, in considering whether to grant a protection order the court will consider the following factors:

• History of family violence;
• Repetitive or escalating family violence;
• Evidence of a pattern of coercive & controlling behavior;
• Current status of the relationship between the at risk family member and the family member against whom the order is to be made;
• Circumstance that may increase the risk of family violence (ie. substance abuse, employment or financial problems, mental health problems, access to weapons, or a history of violence);
• The at-risk family member’s perception of her own safety and security;
• Circumstance increasing the at-risk family member’s vulnerability (ie. pregnancy, age, family circumstances, health or economic dependence);

Recent Case Sets Out The Test For Our Surrey Protection Order Lawyers

Our Surrey protection order lawyers explain that in the BC Supreme Court decision in Dawson v. Dawson, 2014 BCSC 44 the court held that a single act of family violence may be sufficient to prove a risk of future violence when the single act is extremely serious and the gravity of harm of a potential future act may be just as extreme, in this case potentially lethal:

[43]        I reach the foregoing conclusion for two broad reasons. The first involves the serious and unprovoked nature of the November 2007 assault. The second relates to Mr. D’s conduct since the assault and how that conduct relates to his mental health. It was for these two reasons that I imposed the restraining order I did in July 2010. [44]        The fact that there has been an act of physical family violence, even a single act of physical family violence, may provide a sufficient basis to conclude that family violence is likely to occur in the future. Although the passage of time may serve to reduce the probative force of such evidence, to the extent the circumstances giving rise to the earlier act of violence remain at large, the predictive quality of that earlier act may not be diminished with the passage of time. Moreover, it seems to me that when assessing the “likely” threshold set out in s. 183(2)(a) regard should be had to the gravity of the harm that might follow from an act of physical family violence. [45]        Dealing with the latter point first, the earlier act of violence in this case was extremely serious; indeed, it was potentially lethal. Given the protective purpose of orders under Part 9 of the Family Law Act, it is reasonable in my view to apply what might be termed a sliding scale to the threshold. The potential for very serious acts of violence is sufficient to engage the provisions of the Act, even if those acts of violence are, in absolute terms, not particularly likely.

Is A Single Incident Always Enough?

Nonetheless in W. (L.I.) v. W. (T.R.), 2014 BCSC 1748 the court declined to make a protection order even though a single act of family violence had occurred. The reason the court did this was because the incident was out of character for the offender and he had taken meaningful steps to ensure that his behaviour was not repeated.

[229]     The claimant seeks a protection order under s. 183 of the FLA.  As I understand it, the application is made on the basis the respondent’s regrettable behaviour over the 2013 Thanksgiving weekend.  There is no other evidence before me that would justify such an order. [230]     As serious as the respondent’s behaviour was on that occasion, it was also out of character.  In addition, the respondent has taken meaningful steps and, by virtue of the terms attaching to the s. 810 recognizance order, will continue to take meaningful steps to ensure that the behaviour is not repeated.  On the evidence before me, I am not satisfied that family violence is likely to occur in the future or that the claimant is an “at-risk family member”.  The application is, therefore, dismissed.

Our Surrey protection order lawyers  act for spouse’s in need of protection and those who need help to deal with anger management issues. Getting help for both spouses early on is critical to ensuring matters can be resolved safely and that conflcit that can harm spouses and their children is minimized.

John Nelson Surrey BC protection order lawyer

If there are any of the above stated circumstances of family violence in your family dispute, do not wait another minute to phone our skilled and decisive Surrey Protection Order Lawyers today at 1 877 602 9900. We can help you obtain a protection order right away to ensure  the safety of you and your children.

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Vancouver step parent child support lawyers assist clients in claiming or defending basic child support and special and extraordinary child support claims. Our skilled Vancouver Step Parent Child Support lawyers  handle self employed payor cases, shared parenting cases and over the age of majority Vancouver child support cases as well as tricky cases involving step parents.

Delay in dealing with this thorny issue can be fatal financially so call us now across BC at 1-877-602-9900. We have offices in Kelowna, Surrey, Fort St John and Vancouver.

Vancouver Step Parent Child Support lawyer, Amalia Schon

Vancouver Step Parent Child Support

What is the support obligation of a step parent compared to a natural parent and what are the rules?

Lorne N. MacLean, QC head of our Vancouver Step Parent Child Support team, has handled BC Appeal Court cases where he acted for a step parent in making a claim against a biological father. Our top rated Vancouver child support lawyers including Amalia Schon, who writes today’s blog, think it important that our clients understand how step parent child support works.

This blog posts expands on previous posts concerning a stepparents’ obligation to financially support stepchildren after the spousal relationship ends.

How Does Vancouver Step Parent Child Support  Work?

Our Vancouver Step Parent Child Support lawyers are happy to explain how the various legislation affects child support liability and the amount to be paid by a step parent.

Your obligations as a stepparent may arise under the following:

1. The Divorce Act
2. The Family Law Act
3. The Federal Child Support Guidelines

1. The Divorce Act

If you stand in the place of the parent for your ex-spouse’s child, he or she is presumed to be a child of the marriage. Factors to consider in determining whether you stood in the place of a parent include whether you disciplined the child, the extent of the involvement and inclusion of the child with your family and whether you were held out to third parties as the child’s parent.

Our Vancouver step parent child support lawyers know that once you are found to “stand in the place of a parent”, you cannot unilaterally terminate the relationship to avoid your responsibility for support: [1998] Chartier v. Chartier 1 S.C.R. 242.

2. The Family Law Act

Your duty to provide support as a stepparent arises if you contributed to the child’s support for at least one year and last contributed to the child’s support within a year and our Vancouver step parent child support lawyers warn you must meet the deadlines to make a claim or you can be barred from doing so.

Lorne N MacLean, QC, of macLean Law’s Vancouver Step Parent Child Support lawyers

Where a stepparent’s support obligation is being considered, emphasis is usually placed on the standard of living the child enjoyed while living with the stepparent: H. (U.V.) v. H. (M.W.), 2008 BCCA 177 (cited in Shen v. Tong, 2013 BCCA 519 at para 57).

For example, if you provided a standard of living to your stepchild that was significantly higher than that which his or her biological parents can provide without your contribution, a court may order you to provide an amount of support that will enable your stepchild to continue to enjoy a similar standard of living. The Family Law Act also has some interesting rules on when a step parent’s obligation ends and you should meet with one of our experienced Vancouver Step Parent Child Support lawyers to know your rights.

3. The Federal Child Support Guidelines

The Guidelines provide that if you are found to stand in the place of a parent, the amount you will be required to pay may also depend on how much the biological parent pays.

Approaches to calculation the child support obligations of a stepparent

The BC courts have taken several approaches to determining the amount of child support payable by a stepparent under the Guidelines. In Mancuso v. Weinrath, 2005 BCSC 1606, the court reviewed the four main approaches to determining how much child support a stepparent should pay under the Guidelines:

1. Non-mathematical: the court does not use any particular equation to determine the step-parent’s liability. Rather, it weighs the factors in the case to determine the extent to which the award should fall below the Guideline amount, if at all. This is the method most frequently applied in British Columbia.

2. Subtraction: the court subtracts the payments made by the non-custodial biological parent from the full amount step-parent would be liable to pay under the Guidelines.

3. Cumulative: the court makes no deduction from the full amount the step-parent would pay under the Guidelines despite the fact that the biological parent is also paying support. This method is rarely employed in British Columbia.

4. Apportionment based on a fair standard of support: the court determines the stepparent’s liability for child support based on the amount of money that is required to maintain a “fair standard of support” for the child and apportions the responsibility for meeting that standard between the parents. The court has suggested three different methods of quantifying the fair standard of support:
   1. the fair standard of support may be either the table amount for the combined incomes of the separated parties before separation, or the combined table amounts for those incomes;
   2. it may be the stepparent’s table amount multiplied by two;

• the fair standard of support may be discerned based on evidence of specific expenses the custodial parent incurs to support the child; and

1. it may be appropriate to combine the pre- or post-separation incomes of the biological parents and the stepparent and determine the table amount for that income.

If you are concerned about your child support obligations to your stepchildren or need support for your child, call MacLean Law’s Vancouver step parent child support lawyers today at 1-877-602-9900 or fill out our initial consultation form to meet with us fast.

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This year the Vancouver chapter of Dress for Success is celebrating 17 years of IMPACT 360. MacLean Law is happy to once again sponsor this great organization who help women not only enter the workforce but continue to support them through a mentorship and career coaching services.

This year, Tal Wolf and Nicholas Davies from the MacLean Law Family Law practice will be representing the firm at the IMPACT gala on Thursday May 12. Hosted by the well known and very funny Fred Lee, the evening will be about celebrating success. Join us at the Regency Lexus dealership on Burrard Street for an evening filled with spirit tastings, designer cocktails, hors d’oeuvres and live music. This signature event welcomes over 300 of Vancouver’s most influential business leaders, sponsors and community supporters. Help us reach our goal to sponsor 100 women for a year. Find tickets and information.

DFS Mission
The mission of Dress for Success is to empower women to achieve economic independence by providing a network of support, professional attire and the development tools to help them thrive in work and in life.

Tal Wolf Lawyer, MacLean Law

Nicholas Davies Lawyer, MacLean Law

The post Dress for Success Impact 360 – 2016 appeared first on MacLean Family Law.

Our top rated Calgary spousal support lawyers who can be reached at 403-444-5503 fully understand the perfect economic storm that has hit Alberta and in particular Calgary. The slow down in the oil patch has been catastrophic and the fires in Fort McMurray are even worse both personally and economically. Hiring one of our top rated Calgary Spousal Support Lawyers can help you avoid a perfect legal storm.

Calgary Spousal Support Lawyers offices of MacLean Family Law 403-444-5503

MacLean Law is Vancouver’s top rated family law firm once again and due to demands for Calgary family law clients we have committed to opening our 5th Western Canadian office. Our new Calgary Spousal Support Lawyers offices are located on the 10th floor of Banker’s Hall in downtown Calgary.

Calgary Spousal Support Lawyers

The MacLean Law Calgary spousal support lawyers also know these tough economic times mean paying spouse’s have had their earnings vaporize or at a minimum diminished dramatically. Our highly skilled Calgary spousal support lawyers act for medium to high net worth Calgary executives, entrepreneurs and professionals and we fully understand the special complexities of a high net worth spousal support claim.

In this blog Lorne N. MacLean, QC founder of top rated MacLean Family Law points out some basics of how spousal support works.

Top rated Vancouver family lawyers open Calgary office 403-444-5503

Our Calgary spousal support lawyers know that in medium to high net worth spousal support cases the stakes are high on complex issues such as:

• $350,000 cap exception for high income earners
• self sufficiency objectives for recipient spouses
• whether there is shared custody or split custody of the children
• repartnering
• retirement
• loss of job
• dramatic declines in incomes of the payor or recipient
• double dipping on company and pension income
• how capital assets factor into spousal support

Our Calgary spousal support lawyers also warn that a failure to act promptly by other spouse to vary to correct and reduce spousal and child support when one loses their job is crucial to avoiding an unfair result.

The Alberta courts Family Law Information Centre Information Booklet provides a tidy summary of the basic principles of how the Divorce Act and the Family Law Act govern spousal support when combined with the Spousal Support Advisory Guidelines. Their website is chock full of good information. Remember however, that consulting a lawyer is always wise to avoid a bad outcome.

You are in an Adult Interdependent Relationship if you are in a relationship of interdependence with another adult

• for three years; or
• for less than 3 years if you have signed an Adult Interdependent

Partnership agreement; or

• for less than 3 years if the two of you have a child together.

Both the Divorce Act (Canada) and the Family Law Act discuss the objectives of a spousal support order; in other words, the purpose of a spousal support order. The objectives are to:

• recognize any economic advantages or disadvantages to the spouses coming out of the marriage or occurring because the marriage has ended;
• divide up any financial costs arising from the care of the children over and above the child support;
• lessen any financial hardship of the spouses which may have taken place because of the end of the marriage; and
• as much as possible, encourage the spouses to become able to support themselves within a reasonable period of time.

The Divorce Act (Canada) says that when making a spousal support order, the court must think about the condition, means, needs and other circumstances of each spouse, including:

• how long the spouses lived together;
• the functions performed by each spouse during the time they

lived together; and

• any order, agreement or arrangement relating to support of either spouse.

The Family Law Act also lists the above factors. However, that Act also tells the judge to think about these factors:

• whether or not either of the spouses / partners have a legal obligation to support another person (e.g. another spouse or children);

• The Without Children Formula
• If the parties do not have children, or if the children are all grown, then the Without Children formula applies. This formula will give a “low end” and a “high end” amount.

• °  if the paying spouse / partner lives with someone else, how much that person contributes to their household expenses (and by doing that, increases the ability to pay support); and
• °  if the recipient spouse / partner lives with someone else, how much that person contributes to their household expenses (and by doing so, decreases the financial need).

• The With Children Formula
• When parties have dependent children, the formula for calculating spousal support is more complicated, and one must use special software. In general terms, the formula calculates the net disposable incomes of each party, after paying taxes, deductions and the children’s costs, and then calculates the amounts of spousal support to be paid that would leave the recipient with between 40 and 46% of the total of the two parties’ net disposable incomes.
• There are variations to this formula if there is shared or split custody, or if the children live with the party who will be paying the spousal support.

 

When there are no children, the Spousal Support Guidelines say that support should continue the support should continue for between .5 and 1 year for each year that the parties lived together.

If parties lived together for more than 20 years, or if you add the years of living together to the recipient’s age, and the total is greater than 65, then the support will be paid indefinitely.

When there are children, the Spousal Support Guidelines say that the courts may use the same guidance as above, or, for shorter marriages, they may order that support may end when the youngest child starts school, or when the youngest child finishes school.

Do Not Delay In Correcting Calgary Spousal Support If Your Income Changes

Our experieinced Calgary spousal support lawyers warn that now that many Calgary spousal support paying spouses have suffered catastrophic pay cuts they may be in too much shock to take action to correct the spousal support they are paying to a proper and sustainable level. Failure to act promptly can lead to a very nasty result. You cannot simply reduce or stop paying spousal support after a job loss or pay cut you need to obtain the consent of your spouse and paper it in a court order or amended agreement. If you cannot get prompt cooperation you need to proceed to court. Delay in applying to cancel almost always leads to a refusal to correct the overpayment of support.

In Haisman v Haisman Alberta Court of Appeal 7 R.F.L. (4th) 1 the court joined out the heavy onus a paying spouse faces when they were too upset by losing their job to promptly apply to reduce support. Our Calgary spousal support lawyers do not want you to been of these poor payor. Apply promptly or face the consequences.

Where the past inability to make child support payments as they came due has lasted for a substantial period of time, but the former spouse did not apply during that time for a variation order, the situation may be different. On a later application to vary, a judge will have to decide, with the benefit of hindsight, whether it would have been appropriate to suspend enforcement of the support order during the time when the former spouse was unable to pay, or whether at least a temporary reduction in the child support payments would have been in order. A judge should view with considerable skepticism any claim that a reduction in the support pay- ments, temporary or indefinite, would have been proper. However, if he or she decides that it would, the judge may for this reason reduce accordingly the arrears of child support which have built up. In my view this is a spe- cial circumstance.

30 I wish to emphasize that the mere accumulation of arrears, without evidence of a past inability to pay, is neither a change under s. 17(4) of the Divorce Act, nor a special circumstance.

31 A present inability to pay arrears of child support does not by itself justify a variation order. It may jus- tify a suspension of enforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears. However, in the absence of some special circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilities that he or she cannot pay and will not in the future be able to pay the arrears.

32 In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probab- ilities that the former spouse or judgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears.

Calgary Spousal Support lawyer Lorne MacLean, QC

If you are concerned about a Calgary spousal support issue we urge you to pick up the phone and book an appointment to meet with one of our Calgary spousal support lawyers to chart a path to financial fairness when it comes to Calgary spousal support. Call us toll free across Alberta or BC to get help at 403 444 5503 or visit our Calgary Spousal Support Lawyers office in Bankers Hall, Calgary.

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Top-rated Vancouver parental loan lawyers understand that many parents help their married children out by providing parental loans to them. We advise you to seek advice from our highly experienced parental loan lawyers when you plan to loan your children money, because without sound legal advice, a parental loan can quickly evolve from a simple, good-willed gesture to the source of a major headache. Click here to meet with us before monies are advanced or after so you can make things right.

Top rated Vancouver family lawyers

Our top-rated Vancouver parental loan lawyers regularly advise our wealthy clients to secure any alone to a child and make it clear what the terms of the Vancouver parental loan is and how it is secured.

Jian Kang articled student to our Vancouver parental loan lawyers team is pleased to explain a recent case that can help the unwary from making a huge financial mistake. Our Vancouver parental loan lawyers provide the following summary of the 2015 BC Supreme Court case, Byrne v. Byrne

Background

Mr. and Ms. Byrne are middle-aged spouses who have two children. They separated after a seventeen year relationship during which they accumulated a number of assets and substantial debt. Their assets included two motor vehicles, a family home, a trailer, a pension and RRSPs. Their debts were composed of student loans, bank loans, and credit card debt.

The husband’s parents also made monthly payments to him over several months in 2010 and 2011 and they consider those advances as a loan which they expect him to repay. One question that the judge decided upon, which is also the focus on this article, is whether the money from his parents is a family debt that should be paid equally by the parties.

Chen Zhao Mandarin speaking Vancouver parental loan lawyers team member

The skilled Vancouver parental loan lawyers at macLean Law know a gift during happy times in a marriage can quickly be characterized by parents of one of the spouses as a loan. In these cases the facts surrounding the advance of money and what happened in terms of expectations for this money really matter. Memories are one thing but documents and actions are more important.

The Family Loan

In the following paragraphs, the court conducts a detailed and scholarly review on the legal test on whether an advancement of money from parents to adult, independent children is a loan and or a gift in the absence of agreements.

[38]       The claimant testified that in October 2010, he was in transition from school to work. At around this time the parties had begun renovations to their home and the expenses were becoming higher than they could afford. The claimant’s father, Mr. Byrne Sr., agreed to lend him money at the rate of $1000 every two weeks. Mr. Byrne obtained a line of credit and made payments into a joint account held with the claimant. Mr. Byrne Sr. said the arrangement was “done as a loan – no question about it”. There were no terms of payment for the loan. Neither Mr. Byrne nor, Mrs. Byrne, spoke with the respondent about the loan. No document was ever signed as evidence of the loan nor was an express promise made to repay the amount given to the claimant. [39]       From October 6, 2010 to May 6, 2011, Mr. and Mrs. Byrne made twice monthly payments to the claimant. The amount confirmed as advanced by them was $16,200. [40]       I accept that Mr. and Mrs. Byrne gave the claimant money to assist him in the transition from life as a student to an active member of the workforce. The issue is whether payment of these funds constituted a gift or loan. If it is a loan it will be characterized as a family debt pursuant to s. 86 of the FLA and subject to division between the parties. [41]       Payments from a parent to an adult child are generally not presumed to be gifts; they are presumed to form a resulting trust in which the parent keeps an interest in the property. However it is open to a party claiming the transfer is a gift to rebut the presumption of a resulting trust by providing evidence to that effect: Pecore v. Pecore, 2007 SCC 17 (CanLII). [42]       In Pecore, the Supreme Court of Canada addressed how the presumptions operate in the context of transfers from a parent to an adult child:

(a)     the focus in any dispute over a gratuitous transfer is the actual intention of the transferor at the time of the transfer (para. 5);

(b)     When the transferor’s intent is unavailable or unpersuasive, the presumptions of advancement (a gift) and resulting trust are useful guides and will apply (para. 23);

(c)       gifts from parents to independent adult children are not presumed to be gifts; rather the presumption of a resulting trust applies (para. 36);

(d)     there may be circumstances where a transfer between a parent and an adult child was intended to be a gift and it is open to the party claiming that the transfer is a gift to rebut the presumption of resulting trust by bringing evidence to support that claim (para. 41);

(e)     the burden on the party claiming a gift was made is proof on a balance of probabilities (para. 43).

Vancouver Parental Loan Lawyers Explain Factors

Our Vancouver parental loan lawyers ask you to particularly focus on what the court will look at to decide if an advance of money to a couple is a loan or really a gift.

[43]       Several factors can be examined to distinguish between loans and gifts in the family context. These were addressed in Kuo v. Chu, 2009 BCCA 405 (CanLII) at para. 9 where the Court of Appeal adopted the factors described in Locke v. Locke, 2000 BCSC 1300 (CanLII) as applicable to the question of whether a loan or gift was intended:

(a)     Whether there were any contemporaneous documents evidencing a loan;

(b)     Whether the manner for repayment is specified;

(c)       Whether there is security held for the loan;

(d)     Whether there are advances to one child and not others, or advances of unequal amounts to various children;

(e)     Whether there has been any demand for payment before the separation of the parties;

(f)       Whether there has been any partial repayment; and,

(g)     Whether there was any expectation, or likelihood, of repayment.

Vancouver Parental Loan Lawyers Explain Judge’s Decision

In Byrne our Vancouver parental loan lawyers point out the judge concluded that the parents always intended to make a gift to both spouses and not a loan and accordingly the wife did not have to repay her in-laws the money they advanced to her and their son.

[44]       In M.F.R. v. B.P.R., 2010 BCSC 1063 (CanLII), the court concluded that no loan was made in circumstances where there were no contemporaneous documents or promissory notes produced to explain why money had been advanced. In M.F.R. repayment was never discussed with the wife. No security was given, no demand was made before separation, and no money was repaid to the husband’s father. [45]       In the case at bar, the respondent submits that the money Mr. and Mrs. Byrne paid to the claimant was a gift. The respondent knew that the claimant was receiving money from his parents but did not understand there was any agreement he was obliged to repay them. The indicia supporting her argument are as follows:

(a)     There was no evidence of a discussion about a loan or a promissory note and no details regarding the interest payable or the term of the alleged loan;

(b)     There is no information regarding the timing or manner for repayment of the alleged loan before the Court;

(c)       There was no security held for the alleged loan;

(d)     There is no evidence regarding advances or loans to other children;

(e)     There was no demand for repayment before or after the parties separated; and,

(f)       There was never a repayment in whole or in part during or after the marriage.

[46]       I accept the uncontradicted evidence that Mr. and Mrs. Byrne borrowed money against a line of credit to assist their son. They seem to have no doubt that they were lending the money to the claimant, Although the presumption of resulting trust would usually operate to constitute these payments as a loan since it was made by parents to their adult child, there is a paucity of evidence to the effect that corroborates their contention that this was indeed a loan. No other evidence corroborates the claimant’s assertion or that of his parents, that this was money he is agreed to repay his parents. [47]       I do not accept the claimant’s assertion that the respondent was made aware of this loan and affirmed their obligation to repay his parents. However, that factor is not determinative of the question of whether a loan was made.

[48]       On the balance of probabilities and in the absence of evidence described in Kuo concerning parental loans, I am satisfied that the claimant’s parents advanced this money without expectation of repayment of principal or interest and that their current desire for repayment was more likely triggered by the separation of the parties.

[49]       As a result, I conclude that the money paid by the Byrnes to their son is not a family debt as described in s. 86 of the FLA.

Our Advice

Over and over again, our experienced Vancouver parental loan lawyers have seen family loans become central issues in court, incurring significant expenses and emotional distress to all parties, when all this could have been prevented by seeking advice from a parental loan lawyer and properly executing a simple, clear contract. A divorce is already a major headache in anyone’s life. Don’t make it even worse. There are many issues in a divorce action that are complex in nature and often best determined by a judge, but parental loan is NOT one of them. Our Vancouver parental loan lawyers will make things clear from the start and provide proper security and repayment terms so your money is protected. Trust between family member sis great but for a modest cost our Vancouver parental loan lawyers will protect you from a huge mistake and high legal fees in the future.

Call 1 877 602 9900

At MacLean Law, our top-rated Vancouver parental loan lawyers are happy to help you with any inquiries you might have regarding parental loans, be it preparing a loan agreement, advising on the issue, or resolving a dispute arising out of it.

Call our toll-free number 1 877 602 9900 today to speak to us, or fill out an initial consultation form online if you’d like to meet with us. We have offices in Vancouver, Surrey, Richmond, Kelowna, Fort St. John and Calgary, and are always happy to meet you at a location that is most convenient to you.

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Richmond Divorce and Separation Lawyers

MacLean Family Law and its top-rated team of Richmond Divorce and Separation lawyers is proud to announce its expansion into Richmond, B.C. effective June 1, 2016. Our new Richmond office is located on the 3^rd floor of the Richmond Business Centre in the core of the energetic multicultural and world class City of Richmond, and our client focused and discrete Richmond Divorce and Separation Lawyers can meet with you at:

5811 Cooney Road
Suite 305 South Tower
Richmond, BC

You can contact us in Richmond or across BC at any of our 5 locations.

As Richmond has a significant Asian population, our Mandarin and Cantonese speaking lawyers and assistants are skilled in helping our Chinese and family law and personal injury clients. Our Mandarin and Cantonese speaking phone line is 604-682-6466. We have dedicated Simplified and Traditional Chinese language sites for our Asian clients.

Top Rated Vancouver and Richmond Family Law lawyers Multiple Times

For over three decades, the Richmond Divorce and Separation Lawyers of MacLean Family Law has been providing top-quality legal services in family law actions in the Greater Vancouver area, and has gained a reputation as one of BC’s very best family law firms. In both 2014 and 2016 MacLean has won the Top Choice Award as Vancouver’s Best Family Law Firm. We have more than 20 intelligent and hard-working lawyers and have offices in Vancouver, Surrey, Fort St. John, Kelowna, and Calgary; now, with the addition of our new Richmond Office, we are sure to bring our renowned top-quality legal services to residents in Richmond on an even broader basis.

Richmond Divorce and Separation Lawyers Mandarin speaking Asian wealth protection team 604-682-6466

Our firm has acted in Richmond and the greater Vancouver on high net worth financial support and property division relationship breakdown cases as well as complex child custody and parenting arrangement disputes.

Range of Services

Our Richmond Divorce and Separation Lawyers act for spouses involved Richmond relationship breakdowns involving the BC Family Law Act and/or Divorce Act:

• in shared and sole custody and parenting arrangement cases
• in Richmond spousal support and child support cases involving high net worth business owners, professionals, entrepreneurs and executives and their hardworking spouses focused on high net worth exceptions for spouse’s who share custody, who have incomes over $150,000 for child support disputes and who have over $350,000 for spousal support disputes,
• in cases involving family property division and particularly in cases involving businesses, professional practices, joint ventures, partnerships and investment portfolios and developments.
• in matrimonial property and excluded property and equal and unequal division of property
• in BC valuation disputes and distributive tax and capital gains tax disputes
• in BC trust disputes where one of the spouse’s controls or is the beneficiary of a trust
• in BC wealth and asset protection and preservation strategies
• in Bc family gifts, loans and debt disputes
• in BC and Albertareproductive technology and ART agreements
• in the negotiation preparation of cohabitation, marriage and separation agreements in BC
• in mediation, arbitration and litigation in BC and Alberta
• in BC and Alberta grey divorce disputes involving retirement, re-partnering and double dipping arguments

Lorne N MacLean, QC, of MacLean Law’s Richmond Divorce and Separation Lawyers

Lorne MacLean, QC founder of our team of Richmond Divorce and Separation Lawyers is proud to have appeared in the Supreme Court of Canada more than once and in the BC Court of Appeal on multiple occasions. His renowned reputation as a skilled and indefatigable adversary leads to a number of settlements in cases that he is involved in. Lorne N. MacLean, QC handles the most contentious and complex cases with a a passion for resolving matters discretely and effectively. Discretion is our focus so that the finances of your family and yourself as well as your reputation are preserved.

Dedicated Team of Chinese  Richmond Divorce and Separation Lawyers 

Diversity is has always been a key focus at MacLean Law. We have an outstanding team of lawyers who speak Chinese, including both Mandarin and Cantonese, and handle high net-worth divorce files on a regular basis. We are always happy to assist Chinese clients in their mother language to ensure nothing is lost in translation and best results are achieved. If you would like to speak to our Chinese lawyers in Richmond, please contact us at 604 682 6466.

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Mandarin Speaking South Surrey White Rock Lawyer

An experienced Mandarin Speaking South Surrey White Rock Lawyer is crucial to your family case because they are not only capable of speaking fluent Mandarin and Cantonese, but also sensitive to your Chinese cultural background and values, all of which allows them to provide you the top-quality legal service that MacLean Law is proud of.

Mandarin Speaking South Surrey White Rock Lawyer team 604-682-6466

Founded by Lorne MacLean, Q.C. in 1983, MacLean Law has grown to a mid-sized boutique family alw and personal injury law firm with around 22 lawyers and offices in cities with dense Mandarin-speaking population such as Vancouver, Richmond, South Surrey/White Rock, Calgary, Kelowna and Fort St. John. Our South Surrey/White Rock office is situated at:

15240 56 Avenue

Suite 303

Surrey, BC V3S 5K7

Phone 604-576-5400

Our Mandarin Speaking South Surrey White Rock Lawyer Team Rated Best Family Law Firm in Vancouver

Mandarin speaking South Surrey White Rock lawyers articled student Jian Kang

The people of Greater Vancouver  have chosen our Mandarin Speaking South Surrey White Rock Lawyer team to be the Best Family Law Firm in Vancouver through the prestigious Top Choice Award in both 2014 and 2016. Our top-rated family law legal services include:

• Divorce and separation;
• Child support and spousal support;
• Guardianship, parenting time, custody and contact;
• Property division;
• Protection of assets;
• Marriage agreements, separation agreements and parental loan agreements; and
• Negotiation, mediation and arbitration.

Mandarin Speaking South Surrey White Rock Lawyer team 604-682-6466

Our Mandarin Speaking South Surrey White Rock Lawyer team is Happy to Assist You

Our team of Chinese lawyers routinely helps Mandarin speaking or Cantonese speaking high net-worth clients to transcend international divorces and protect their oversea assets, including businesses and properties in mainland China, Hong Kong and Taiwan. If you would like to meet with our Mandarin or Cantonese speaking lawyers in South Surrey/White Rock, please dial our Mandarin and Cantonese line: 604 682 6466. We will be happy to talk to you.

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Our Vancouver Adult Child Support lawyers read with interest a recent case where Vancouver adult child support payments were modestly reduced because the child was over 19 years and working part time. Many parents asked to pay child support for children out of high school ask what their Vancouver adult child support obligation is. Often these parents remember they paid for all or part of their post secondary education and wonder why they are obliged to pay full Vancouver adult child support. Should a child be encouraged to take baby steps to independence so they develop self confidence and a sense of financial responsibility? Our skilled child support lawyers at MacLean Family Law handle hundreds of Vancouver adult child support cases and we are Western Canada’s largest family law firm and one of the highest rated Vancouver Adult Child Support firms in BC. Meet with our skilled Vancouver adult child support lawyers to come up with a plan that balances the needs of a child to get an education to be competitive in today’s modern economy while ensuring that child recognizes their own role in starting on their way to being a productive member of society who recognizes the value of a dollar. Call us toll free at 1-877-602-9900 if you have a tricky Vancouver Adult Child Support question.

Top rated Vancouver Adult Child Support lawyers and award winning family law firm

Vancouver Adult Child Support

CHILD SUPPORT MAY BE REDUCED TO ACCOUNT FOR WHAT THE CHILD CONTRIBUTES TO THEIR OWN FINANCIAL STABILITY

Child support is on obligation owed from a parent to their child. Generally, the obligation to pay child support ends when the  child turns 19 if they are self sufficient. However, a variety of circumstances can extend the amount of child support owed – very commonly, this occurs when children decide to pursue post-secondary studies. Disputes often arise where a child becomes older than 19, and the paying parent wants to stop paying child support or wants to encourage their child to take some responsibility for paying a portion of the Vancouver Adult Child Support.

Brandon Hastings of Vancouver adult child Support lawyers

Recent Vancouver Adult Child Support Case Gives Credit For Child’s Ability To Make Modest Contribution

In LMW v RLW, 2016 BCSC 758, “MW,” the child of the marriage turned 19. The paying parent, whose income for the purposes of child support was $361,567.94, wanted to pay less than the $2,883.85 specified by the federal Child Support Guidelines.

The court found that, because MW was 19 years old and making some income while studying part-time, the child amount should be very modestly reduced to reflect MW’s ability to self-support. In LMW v RLW the court reduced child support to $2,500 per month from $2,833.85:

Our child support lawyers have helped hundreds of parents ensure that their children are getting all the support they deserve from their parent, and to make sure parties know where the legal obligation to pay child support ends.

Vancouver adult child Support lawyer Lorne MacLean, QC

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The retroactive spousal support lawyers at MacLean Law routinely handle cases involving a start date for spousal support and child support that pre-dates the hearing at trial on the issue of support. These earlier start date cases for spousal and child support called “retroactive support” cases involve a set of rules that can differ depending on whether the support is spousal support as opposed to child support. Our retroactive spousal support lawyers know that generally getting speaking, getting an award of retroactive child support is easier than getting an award of retroactive spousal support. Top Retroactive spousal support lawyers know that delay is not favourable to a spouse in need as it may show an ability to get by without support.  Conversely, delay by the paying spouse in being forthright about their real income can cause a court to go farther back in time for the start date of retroactive spousal support.

Delay Is Never A Good Thing In Support Disputes

Our retroactive spousal support lawyers were interested  to see a recent BC Court of Appeal decision on retroactive spousal support that was just handed down where a husband took issue with the test to be applied for a retroactive spousal support start date.

Call our top rated divorce and family law lawyers at 1-877-602-9900 retroactive spousal support lawyers on your side. We have 5 offices in BC in Vancouver, Kelowna, Richmond, Surrey and Fort St John and a new office in Calgary.

Top rated Vancouver family lawyers and retroactive spousal support lawyers 1-877-602-9900

Our retroactive spousal support lawyers know it is important when there is any delay by the spouse in need in applying for support to explain why there was a delay. Sometimes our retroactive spousal support lawyers will argue there was a fear of harm by the needy spouse that caused them not to ask for support and sometimes it is for lack of resources to hire a lawyer and other times it is because the spouse who needed spousal support was mislead or not told about the real financial resources of the paying spouse. Our retroactive spousal support lawyers encourage spouses involved in these cases to deal with the issue of the start date immediately as delay increases the complexity and cost in retroactive spousal support cases.

Retroactive Spousal Support Lawyers

Lorne N. MacLean QC, leader of our team of retroactive spousal support lawyers analyzes the recent case of Kraft v Kraft and bolds the key parts of the judgment that imnpact future awaards of retroactive spousal support

Analysis

1. Retroactive Support

(a)      The D.B.S. Factors

[16]         Mr. Rempel submits first that the trial judge erred in principle by failing to weigh the D.B.S. factors independently in relation to spousal support, adopting instead her assessment of those factors from the retroactive child support analysis. Mr. Rempel argues that these factors are to be approached differently in the context of spousal support, in accordance with Kerr at paras. 207 and 208:

[207]    … in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. …

[208]    Spousal support has a different legal foundation than child support … there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. …

[Citations omitted; emphasis added.]

Differing Rules For  Retroactive Spousal Support

Retroactive spousal support lawyers Lorne MacLean, QC and Spencer MacLean

[17]         I begin by noting that the same factors are to be taken into account whether retroactive child or spousal support is in issue. It is the weighing of those factors that will differ: concerns about the applicant’s delay and misconduct “carry more weight” in relation to spousal support (Kerr at para. 208). In contrast, the entitlement of a child to support is generally so compelling that those factors will be less significant in the exercise of the court’s discretion to make a retroactive award. The underlying facts are, however, relevant to both types of support applications.

[18]         It is to be remembered as well that although the majority in D.B.S. identified four factors to be considered, Mr. Justice Bastarache began by saying:

99        I will now proceed to discuss the factors that a court should consider before awarding retroactive child support. None of these factors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in no blameworthy conduct. Thus, the British Columbia Court of Appeal has ordered retroactive support where an interim support award was based on incorrect financial information, even though the initial underestimate was honestly made:  see Tedham v. Tedham (2003), 20 B.C.L.R. (4th) 56, 2003 BCCA 600. At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix. [Emphasis added.]

[19]         In my view the judge did not err by failing to conduct an entirely independent analysis of the D.B.S. factors in assessing the claim for retroactive spousal support. While some discussion of the reasons for making a retroactive award of either type of support is to be expected, it is not mandatory to explicitly refer to either D.B.S. or the four factors: Reis v. Bucholtz, 2010 BCCA 115

[22]         Mr. Rempel submits first that the trial judge erred by adopting into her retroactive spousal support analysis her finding that Mr. Rempel engaged in blameworthy conduct when “[h]e did not make voluntary adjustments or increases … as his income increased …” (at para. 19). Mr. Rempel argues that in the context of spousal support, a failure to make voluntary adjustments to the level of support is not blameworthy: Aspe v. Aspe, 2010 BCCA 508 at para. 58; Miolla v. Miolla, 2014 BCSC 587 at para. 92; Gisler v. Gisler, 2015 BCSC 323 at paras. 110-11.

[28]         I agree that delay by an applicant seeking spousal support will weigh more heavily against a retroactive award than would be the case on an application for retroactive child support. But the significance of the delay may be diminished when there is a reasonable excuse for the failure to proceed. In D.B.S. at para. 101, Bastarache J. said:

101      Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: seeChrintz v. Chrintz (1998), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.

[29]         In the present case the trial judge found that Ms. Ducharme struggled financially and could not afford to pay legal counsel to pursue her claim for support (at para. 18). Some of those financial struggles related to irregular payment of spousal support (at para. 19). Ms. Ducharme was found to be economically disadvantaged by her primary child care responsibilities and lack of skills which made it necessary to obtain shift work, which in turn made it more difficult to obtain childcare. Further, her financial need was significant:

[20]      … There have been several moves, periods of time when the claimant has had to park her car because she could not afford insurance, times when Internet and television were not available in the home as a result of an inability to meet the cost, and strict limits on extracurricular activities unless the claimant’s parents paid for them or the respondent agreed to contribute to them.

[30]         Finally, I note that the trial judge gave some weight to Ms. Ducharme’s delay in advancing her claim for additional support. Ms. Ducharme applied for retroactive support commencing January 1, 2010, but the trial judge increased spousal support as of December 1, 2011, almost two years later than the date sought.

Don’t delay call our skilled retroactive spousal support lawyers today toll free to find out what your rights and obligations are the amounts involved can be significant and you cannot afford to make a mistake when your financial future is involved. 1-877-602-9900 in BC and Alberta.

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 PRENUP — THE (NEXT) BEST CHOICE YOU EVER MADE!

Vancouver prenuptial agreements lawyers prepare “pre-nups” known as prenuptial agreements and also called  “Marriage Agreements” in British Columbia. Vancouver prenuptial agreements lawyers will explain that a prenup is an agreement between two people that deals with the financial consequences of their marriage ending.Our Vancouver prenuptial agreements lawyers know that in reality, all marrying couples, and even couples who live together for a long period (i.e. over 2 years), or who have a child together, have a default “prenuptial agreement” known as the Divorce Act and the Family Law Act.  But  if you have a high income or substantial assets you may not like the consequences of these BC divorce and family laws, and you may prefer to exercise control over the way your life would be affected by a breakup rather than leaving it in the hands of the government.  Vancouver Prenuptial Agreements Lawyers are often involved in these cases and it makes a lot of sense to get a customized Marriage Agreement drafted by our experienced British Columbia and Vancouver prenuptial agreements lawyers.

Vancouver prenuptial agreements lawyers MacLean, MacLean and Wolf

Vancouver Prenuptial Agreements Lawyers

Are you much wealthier than your partner?  A well-crafted Marriage Agreement can ensure that your partner is marrying you for who you are, and not for your money.  Do you earn much more than your partner? A Marriage Agreement can be used in British Columbia to limit the amount of spousal support that you could owe after lengthy relationship.  Are you remarrying? Your legal and financial concerns may be very different than in your first marriage. Now, you may already have children from the previous marriage, support obligations, and you may own a home or other significant assets. A Marriage Agreement would be critical to ensuring that in the even of another separation, your financial obligations and distribution of your remaining assets and property interests are manageable or even feasible.

Hire a team of Vancouver prenuptial agreements lawyers who have a track record of wealth preservation and asset protection in matrimonial cases. 1-877-602-9900 in BC and Calgary.

We can help if you call us before the relationship starts or you get married and sometimes even after if you act quickly!

Our Vancouver prenuptial agreements lawyers warn that there are multiple ways a prenuptial agreement can be attacked, the common law lists a group of factors and our new Family Law Act sets a test of “significant unfairness” to:

• set aside an agreement on the distribution of property and debt between spouses
• divide family property or family debt other than equally
• divided property normally excluded from division
• set aside an agreement on spousal support

Wealth Preservation and Asset Protection Starts Before You Live Together Or Marry Not After!

Top rated Vancouver family lawyers and Prenuptial Agreements Lawyers

The British Columbia Supreme Court recently signaled yet another endorsement of prenuptial contracts, in an action by the wife for property division, parenting arrangements, and retroactive and prospective child and spousal support. In S.L.D. v. W.A.D., 2016 BCSC 616, the parties had met in 2003.  The wife was employed as an executive assistant to the husband. The parties began cohabiting in 2004. They married in 2007 in Alberta and separated in 2012 in BC. Prior to the marriage, they had two children. Their third child was born in 2009. The wife left the workforce in 2005. In 2005, the husband purchased a business which flourished. Our Vancouver prenuptial agreements lawyers note that by the time of their 2007 marriage, the husband had considerable net worth. His personal assets were in excess of $1 million. His net worth was about 7 million. The global assets of the parties totaled $7.5 million at trial.

Consider Excluding Company Assets

Under the parties’ prenuptial agreement, the husband’s corporate holdings were excluded. The wife’s property entitlement was restricted to an interest in the matrimonial home and its contents, ongoing entitlement to RRSP contributions throughout the marriage and entitlement to both spousal and child support. The agreement was subject to Alberta law. Both parties were represented by counsel during the negotiations. The wife now sought to have the agreement set aside for non-disclosure and an imbalance of bargaining power.

On the issues of proper disclosure, potential duress (when a party is unduly influenced or coerced by the other side or by circumstance), and the adequacy of the wife’s independent legal advice Mr. Justice J.S. Harvey opined:

153     Here, the respondent disclosed all of his assets during the negotiation of the Agreement. All were identified and incorporated into the body of the Agreement. What was lacking was the underlying value of the corporate assets. While there was no formal valuation of the respondent’s corporate assets available to him at the time of the Agreement’s negotiation, the evidence discloses the respondent had an informed estimate of the value based upon information prepared by the corporate accountant, Mr. Clark.

155     There is no question but that the respondent’s income tax returns and financial documents disclosing the performance of his corporate holdings were offered to the claimant through correspondence to her counsel, Mr. Andrew, by Ms. Rollins.

156     Ms. Rollins’ letter of July 23 invites Mr. Andrew to request further information or documentation prior to entering into the Agreement. The July 21 correspondence specifically invites a request for disclosure as to income.

157     Mr. Anslow’s notes confirm there was no suggestion from counsel, when asked, that further documents would not be forthcoming.

158     Mr. Andrew made no request for further information but sought changes to the wording of the Agreement as well as changes that substantively affected the claimant’s entitlement to chattels previously not contemplated by the Agreement. I accept that Mr. Andrew was instructed by the claimant that she did not care about disclosure beyond that which was contained in the correspondence first received by her. I have already concluded that was not because of any threat from the respondent.

159     In my view, the combination of the willingness of the respondent to provide whatever information was sought, coupled with the clear reference to the claimant’s right to request further information, including valuations, precludes the claimant from now raising non-disclosure of valuation estimates as to the corporate holdings that she had long since agreed to forgo any interest in, so as to vitiate the Agreement.

162     It is regrettable that the original letter from Ms. Rollins did not contain more by way of documentation. Perhaps with the inclusion of same, the Agreement would not have been signed in its present form; perhaps its terms would have been enhanced to reflect the admitted growth of the value of CSI during cohabitation, or perhaps the marriage would not have taken place and the claimant would have pursued the advice given by Mr. Anslow.

163     But that is not what happened. What did happen is that the claimant decided she would stand by her original assurance that the corporate assets would remain the respondent’s and she, in turn, would receive one-half the equity in the matrimonial home in exchange, coupled with the annual RRSP contributions, co-ownership of the chattels and support rights in accordance with federal or provincial legislation.

164     Counsel never actively pursued duress during submissions; likely because nothing in the evidence suggested the claimant at any time felt compelled to sign the Agreement.

165     The claimant argues that “understanding the effect of the agreement” is insufficient to satisfy the requirement for independent legal advice unless it can be shown that the signatory, in this case the claimant, was fully apprised of all relevant circumstances, was advised of her legal rights and obligations and was offered an opinion as to whether or not to sign.

167     Assuming for the purpose of discussion that the principles are transferrable, I conclude that the claimant did receive complete, independent advice from Mr. Anslow as to the advisability, or otherwise, of signing the Agreement as first proposed through Ms. Rollins.

168     She was clearly informed by Mr. Anslow as to the effect of the Agreement and his concerns about both disclosure issues as well as the potential constructive trust claim against assets of admittedly unknown value, which may have arisen since the commencement of cohabitation.

169     The claimant took that information to the respondent, with the result he agreed to an immediate transfer of one-half the equity in the matrimonial home. Therefore, by signing the Agreement, the claimant secured two things: an immediate, defined interest in the matrimonial home and its contents and a contribution annually to her RRSP. The consideration ultimately received by the claimant accorded with her long-standing expectation, as evidenced by the earlier referenced email, and was in excess of that proffered by the respondent in the original correspondence from Ms. Rollins, which suggested, based no doubt on the model in Hartshorne v. Hartshorne, 2004 SCC 22, that the claimant’s entitlement to one-half the equity in the matrimonial home be staggered over a five-year period.

170     While admittedly a neutral factor, she also retained her rights to both spousal and child support. She abandoned potential claims in trust as against the respondent’s corporate assets, but had agreed to this two years before when the issue was first discussed.

172     Whether the claimant had a claim entitling her to an interest in the assets of the respondent was a matter of contention. Regardless, the claimant cannot now complain she entered into the Agreement absent an opinion as to its advisability or the other options available to her in the absence of signing the Agreement. She had sufficient information so as to make an informed decision as to how to proceed. I earlier noted the various options which were available to the claimant.

173     While perhaps anxious to get the matter of the Agreement out of the way, as appears from her July 20 email to the respondent, the claimant was following through on a long standing commitment to sign an agreement which left the respondent’s corporate holdings exempt from division.

175     Both Mr. Andrew and Mr. Anslow testified that they explained the legal effect of the terms of the Agreement to the claimant. Mr. Andrew reviewed the actual document with her prior to its execution. Mr. Anslow reviewed the more onerous terms suggested in Ms. Rollins’ original letter.

176     I have no doubt that the claimant fully understood the impact of the Agreement prior to its execution on August 7, 2007 and was aware of options available to her in lieu of signing the Agreement.

177     As to the suggestion that the claimant’s vulnerability led her to sign the proffered agreement without proper consideration, I note her email to the respondent of July 20, 2007, following a meeting with Mr. Anslow, wherein she described their extensive past conversations and noted, “our agreement to put the house in joint name [sic]”; “CSI-I want no part of-I’ve said this from day one”; and a willingness to forgo any interest in the respondent’s checking account or RRSPs. Such was stated with a full awareness of her potential claims and the requirement, according to Mr. Anslow, for more information. Knowing all of that, the claimant was willing to forgo her potential interest in the respondent’s corporate holdings for an immediate one-half interest in the matrimonial home.

178     Further, the advice from Mr. Anslow, or his partner, “Tom”, that the Agreement, if put before a court, “wouldn’t be worth the paper it is written on” makes clear the claimant had the opinion of at least one lawyer that the Agreement was unfair to her.

179     Although it is true the claimant did not have a complete understanding of the respondent’s net worth, either at the commencement of their cohabitation or at the time the Agreement was executed, she was aware that CSI was a recent acquisition made during the period of cohabitation and she was advised by Mr. Anslow that her parenting of C., then M.W. and M.C., coupled with her stated work for CSI, might well result in entitlement to an interest in the respondent’s property absent marriage.

180     With all of that in mind, the claimant signed the Agreement.

191     Here, the claimant had the opportunity to avail herself of further financial information if such was truly necessary to inform her decision as to whether or not to enter into the Agreement. She also had the option of declining to marry the respondent, carrying on in the relationship with him and relying, if necessary, upon common-law principles to deal with the division of assets in the event their relationship floundered down the road. Her entitlement to support, whether spousal or child, was unaffected by the Agreement.

192     Finally, it must be noted that, on my observations of the claimant and all of the evidence given in both phases of this trial, it is clear that she is a confident, self-assured person who, at the time of the execution of the Agreement, had a significant background in management or quasi-management positions. Her personality is now, and I conclude then, such that she was unlikely to be bullied or overwhelmed by the personality of the respondent who, in fact, is more soft-spoken and retiring than the claimant and unlikely, in my view, to have presented himself in the fashion described by the claimant over the period of time from Ms. Rollins’ first correspondence to the claimant up to the ultimate execution of the Agreement on August 7, 2007.

193     The idea that a valuation placed on the respondent’s corporate interests in the area of $5-6 million would have resulted in the claimant declining to execute the Agreement is speculative, given the long-standing understanding which existed between the parties that the respondent’s business holdings were to remain separate property upon marriage.

194     Harry requires a two part investigation: (a) proof of inequality in the position of the parties arising from the ignorance, need or distress of the weaker, which left him in the power of the stronger; and (b) proof of substantial unfairness in the bargain.

195     I am unable to conclude that the claimant was in a position of inequality as the term is understood from Harry. Any ignorance arising from the lack of a valuation of the corporate assets was due to a lack of accepting that which was offered.

Thus, the prenuptial agreement was valid. The husband’s willingness to provide whatever information was sought coupled with the clear reference to the wife’s right to request further information, including valuations, precluded her from now raising non-disclosure of valuation estimates as to the corporate holdings that she had long since agreed to forgo any interest in, so as to vitiate the Agreement. In signing the agreement, the wife was following through on a long standing commitment to sign an agreement which left the husband’s corporate holdings exempt from division. The wife fully understood the impact of the Agreement prior to its execution and was aware of options available to her in lieu of signing the Agreement.

The value of pre-planning with your soon-to-be spouse illustrated in the S.L.W. opinion.  In addition to the considerations mentioned above,  If you are marrying someone with a significant debt load, and don’t want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.  If you own part of a business, a prenup can ensure that your spouse does not become an unwanted partner. A prenuptial agreement can ensure that your estate plan works, and, for instance, ensure that a specific heirloom remains in your family.  A prenup can also be used to ensure that the partner who is weaker financially is protected.

Vancouver prenuptial agreement lawyers will help to ensure that your prenuptial contract stands up to inevitable attack when things go south.  The stigma of these types of arrangements is increasingly a thing of the past.  Do not be afraid of using this tremendous tool to help shield your wealth and livelihood from the oftentimes harsh dictates of British Columbia divorce laws. Call us now 1-877-602-9900 to map out a Strategy that maintains financial freedom.

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Our lawyers know that Vancouver short marriage duration spousal support cases are complicated. There are two formulas for spousal support in Canada that significantly affect Vancouver short marriage duration spousal support. Our senior and experienced lawyers know there is a significant difference between the amount and duration of spousal support between a marriage without children compared to one where children are born to the couple. Vancouver short marriage duration spousal support cases  can be particularly stressful as there are significant child care and financial responsibilities.

Lorne MacLean QC Vancouver Short Marriage Duration Spousal Support

Hire a skilled lawyer who deals with the “with child” spousal support formula on a daily basis. Vancouver short marriage duration spousal support involves a thorough analysis of a number of factors.

Vancouver Short Marriage Duration Spousal Support

Today’s blog deals with how long spousal support should be paid after a short marriage involving the birth of a young child at the date of separation. Because the with child formula gives the custodial parent and child over 50% of the couple’s take home pay when one spouse is the sole breadwinner, the financial stakes and consequences are huge.  Hiring a lawyer who deals daily with Vancouver Short marriage duration spousal support cases just makes good common sense. The upper payment time limit for Vancouver Short marriage duration spousal support cases can be the graduation from high school for the youngest child. The lower time  limit is the longer of the length of the relationship or the year the child starts full time school.

In the case of Duscharme and Rempel the BC Court of Appeal dealt with a 2 year relationship and a 1 year old child where the Vancouver short marriage duration spousal support was ordered to last 7 years. The husband payor appealed the Vancouver short marriage duration spousal support decision.

The Court of Appeal reviewed a number of Vancouver short marriage duration spousal support cases and upheld the judge’s decision from the trial both on the start date for support and  for how long the father had to pay spousal support under the “with child formula”.

Vancouver Short marriage duration spousal support 

The duration for support when a child is born is often much longer in short marriages with children than without.

Vancouver short marriage duration spousal support cases involve the  the court considering economic disadvantage faced by the primary parent moving forward in terms of how it affects their ability to retrain to advance their career and to work longer hours to get ahead in today’s competitive society.

Duration of Spousal Support

[45]         The next main issue on appeal relates to the duration of spousal support. Mr. Rempel argues that the trial judge erred in terminating spousal support as of March 31, 2015, seven years after the parties separated. He submits the level of support he paid from the date of separation to trial not only met but exceeded his obligations at law to provide spousal support to Ms. Ducharme. [46]         In the circumstances of this case, the Spousal Support Advisory Guidelines (“SSAG”) provide a range of support of between 5 and 17 years. That range reflects at one end, the year in which the parties’ daughter would first attend school full-time and at the other end, her graduation from high school. While recognizing that the SSAG provide for a wide range of possible outcomes in terms of duration of support in cases involving short marriages with very young children, Mr. Rempel submits that, in general, support orders made in similar circumstances fall at or below the minimum duration suggested by the SSAG. [47]         In Knezevich v. Curtis, 2013 BCSC 432, the Court dealt with a relationship of three-and-a-half years’ duration, with a child born one month before the relationship’s end. The Court set the duration of spousal support at the minimum suggested by the SSAG. Merriman v. Merriman, 2012 BCSC 460, considered a relationship of just over three years’ duration, with a child born one year before separation. The Court again set the duration of spousal support at the minimum suggested by the SSAG, i.e., until the child entered full-time school. In S.R. v. B.E., 2011 BCSC 1586, the Court dealt with a relationship of four-and-a-half years’ duration, with a child born three years before separation. The Court set the duration of spousal support at three years, and at an amount below the low range suggested by the SSAG. [48]         Mr. Rempel submits the trial judge failed to consider the unusual circumstances raised by a case involving a very short marriage and a young child, which in turn caused her to set a duration of support “well above the minimum” suggested by the SSAG. [49]         I would not accede to this submission. The trial judge found Ms. Ducharme was entitled to spousal support based on both financial need and the compensatory model of support. Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse: Chutter v. Chutter, 2008 BCCA 507 at paras. 50 and 51: [50]      … The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868:

The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being. In such situations, spousal support may be a way to compensate such economic disadvantage.

[51]      In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse. [Emphasis added.] [50]         Need alone may be sufficient to ground a claim for spousal support. Ms. Ducharme left high school part way through grade 12 and had a work history involving primarily unskilled and relatively low-paying jobs. Non-compensatory support is grounded in the social obligation model of marriage in which marriage is seen as an interdependent union. It is based on the idea that when a marriage dissolves, the primary burden of meeting the needs of the other spouse falls on his or her former partner, rather than the state: Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 23. [51]         In considering the issue of Ms. Ducharme’s entitlement to spousal support and its duration, the trial judge expressly considered the range of duration and quantum provided by the SSAG where there is a short marriage with a young child on separation. She said: [32]      The parties’ relationship was a short one. However, I conclude that the claimant has been economically disadvantaged in her pursuit of self-sufficiency given her primary childcare responsibilities as somewhat exacerbated by the respondent’s work schedule which makes his parenting schedule uncertain and unpredictable. The claimant has no skills or training at the present time to pursue employment that would involve conventional Monday to Friday daytime employment which has made obtaining traditional childcare difficult, particularly when coupled with her financial pressures. [33]      I find that her spousal support entitlement, then, based on her financial need, her need for retraining, her childcare responsibilities, and the compensatory model, would fall in the mid to longer range of duration and quantum on the Spousal Support Advisory Guidelines. However, that the relationship was short significantly offsets that. [Emphasis added.] [52]         The SSAG provide that in the absence of exceptional circumstances, a short relationship that results in no children will result in a short duration of support because the economic disadvantage arising from the relationship can be ameliorated in that period. The SSAG expressly recognize, however, that the economic disadvantages are not so easily addressed in the circumstances of a short relationship that results in the birth of a child. [53]         In the present case the parties’ daughter was only 12 months old when the relationship ended. As I have already noted, the SSAG provide for duration of support of between 5 and 17 years in these circumstances. The order made by the trial judge resulted in spousal support being paid from July 2008 to March 2015, approximately 6 3/4 years after separation. That is on the low end of the range for duration and in my view cannot be regarded as either an error in principle or clearly wrong. [54]         It is for these reasons that I would dismiss the appeal with costs to the respondent. The appellant continues to be at liberty to appear before the trial judge to address the manner in which the award of support is to be paid.

Vancouver Short Marriage Duration Spousal Support disputes need a deft and skilled hand to ensure all the considerations related to amount and duration are properly considered. Call us across BC and in Calgary toll free at 1-877-602-9900.

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Surrey blameworthy conduct and retroactive support cases involve an assessment of the conduct by a paying spouse that can affect how far back a correction or start date for the right amount of child and spousal support goes. A Surrey Blameworthy Conduct and Retroactive Support decision was was just handed down by our highest BC Court. People often ask  our Surrey Blameworthy Conduct and Retroactive Support lawyers what qualifies as blameworthy conduct in a support case? In today’s blog Brandon Hastings one of our tenacious Surrey Blameworthy Conduct and Retroactive Support lawyers explains how blameworthy conduct can have a big impact on how far back a court goes in awarding a new amount of support.

Surrey Blameworthy Conduct and Retroactive Support

Call us across BC and in Calgary Alberta toll free at 1-877-602-9900 if you have a retroactive support claim that involves allegations of blameworthy conduct.

Brandon Hastings of Surrey Blameworthy Conduct and Retroactive Support lawyers

UNDERSTATING INCOME FOR SPOUSAL SUPPORT QUALIFIES AS “BLAMEWORTHY” – RETROACTIVE SUPPORT OWED

Spousal Support disputes can involve situations where one of the former spouse’s income increases, one of the former spouse’s income decreases, or some combination. But when someone keeps these changes a secret then Surrey blameworthy conduct and retroactive support issues arise.

We recommend you contact a skilled Surrey Blameworthy Conduct and Retroactive Support lawyer early on or better yet make sure a retroactive support award never needs to be claimed by setting up “disclosure teeth” that make the paying spouse give annual proof of income.

Blameworthiness of conduct is one of the factors the court will consider in deciding whether to award retroactive support – support that is meant to “make up” for support that was owed, but not paid. Retroactive support is really just a delayed correction to the proper amount that should have been paid. Our skilled Surrey Blameworthy Conduct and Retroactive Support lawyers warn our clients to have automatic annual correction clause if they are a recipient spouse.

Click here to get answers to your questions on Surrey Blameworthy Conduct and Retroactive Support.

In Ducharme v Rempel, 2016 BCCA 198, a husband paid his former wife spousal support, for approximately 7 years, based on the income that he said he had of approximately $98,000 per year. In fact, his income hovered around $150,000 per year.

Vancouver Short marriage duration spousal support lawyers

The Court of Appeal confirmed that the husband’s conduct was blameworthy. Importantly, his conduct was of importance in determining the start date of the retroactive spousal support award:

…

(a)     Between 2009 and 2014 Mr. Rempel earned a combined total guideline income of approximately $1,018,389;

(b)     During that same period he paid spousal support of $90,160: 80 months x $1,127 per month;

(c)       Mr. Rempel’s corporation had retained earnings of $208,952 as of May 31, 2014;

(d)     Ms. Ducharme had given formal notice to Mr. Rempel of her claim for spousal support in May 2008 immediately after the parties separated; and

(e)     Mr. Rempel’s guideline income at trial was $264,501.

…

Come see our top rated spousal support lawyers today to avoid delay in getting the proper amount of support. We think you and your children deserve the fair amount of child and spousal support.

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