Calgary Unequal Matrimonial Property Division 403-444-5503

Our new Calgary Unequal Matrimonial Property Division office is now open on the 10^th Floor of Banker’s Hall in Calgary and our phone number is 403-444-5503. Calgary and the rest of Alberta has suffered some financial setbacks to their economy and stocks and real estate values there have taken a hit. In days of fast rising property values claims for unequal division were common but is the same true now when values have declined? What is the test for a Calgary Unequal Matrimonial Property Division case?

Calgary High Net Worth Divorce Lawyers founding Lawyer, Lorne MacLean, QC

What Happens When Calgary Matrimonial Property Declines In Value After Separation?

In times where stocks and real estate are rocketing upward Calgary Unequal Matrimonial Property Division cases can involve a claim by one spouse to unequal division of matrimonial property or the gain on exempt property. But what happens when a Calgary Unequal Matrimonial Property Division case involves assets that have been disposed of. Our Calgary Unequal Matrimonial Property Division lawyers handle cases where an asset has declined due to stock market or real estate market reversals and declines? Sometimes in these cases a spouse involved in a Calgary Unequal Matrimonial Property Division dispute will be unhappy with the lower value and argue the spouse who controlled the asset failed to manage that asset properly.

Dissipation and Unequal Distribution of matrimonial Property Where Stocks Declined in Value by $1,000,000!

In a recent Calgary Matrimonial Unequal Property Division case involving shares owned by a husband, the wife appealed a trial decision that did not unequally divide matrimonial property in her favour where stocks had plummeted post separation. In Fleming v Fleming, 2016 ABCA 88 (CanLII) the Alberta Court of Appeal said there was no evidence the husband tried to lose money on the stocks or dissipate the assets by not selling them before they went down in value.

[28]           Finally, the appellant objects to the trial judge’s conclusion that she failed to prove the respondent’s dissipation of two investment assets: the Qtrade portfolio and Canadian Rockport Homes International Inc shares. The record reflects that, post-separation, the value of the Qtrade portfolio declined from roughly $1.2 million in 2010 to just under $200,000 at the date of valuation in 2013. The Rockport Homes shares were valued at $20,000 in 2010 and were worthless by 2013. Based on this drop in value alone, the appellant asserts that the respondent dissipated these matrimonial assets post-separation, which justifies an unequal division of matrimonial property in her favour. [29]           The trial judge found that the respondent did not dissipate these two assets. On appeal, the appellant’s argument is that the trial judge’s finding was a palpable error, given the evidence of the decline in value. The appellant relies on Hennessey v Hennessey, 2005 ABQB 883 (CanLII) at paras 24 and 82,[2005] AJ No 1703, where the Court stated that negligent or careless use of matrimonial property suffices for dissipation, and the standard of care owed by a spouse investing matrimonial property is that of a prudent manager. [30]           Section 7(4) of the Matrimonial Property Act, RSA 2000, c M-8 presumes an equal division of non-exempt matrimonial property unless that presumption can be rebutted by demonstrating the existence of one or more of the factors in section 8: Hodgson v Hodgson, 2005 ABCA 13 (CanLII) at para 21, 40 Alta LR (4th) 212; Kretschmer v Terrigno, 2012 ABCA 345 (CanLII) at para 45, 539 AR 212. Thus, the party arguing for an unequal distribution must prove that the other spouse dissipated matrimonial assets. [31]           In our view, there is not sufficient evidence on the record to determine whether the respondent acted as an imprudent manager or careless investor. As such, the trial judge made no error in concluding that dissipation was not made out on the facts before him. The market conditions affected both parties’ investments, resulting in a decline in value. The respondent testified that he was in regular contact with his stockbroker regarding the performance of his investments, but there is no evidence of what advice, if any, the respondent received regarding these investments and whether he was able to sell them all. Absent evidence of intentional waste and negligent or careless use of matrimonial property, dissipation is not made out.

What Sections of the Matrimonial Property Act Govern a Calgary Unequal Matrimonial Property Division Case?

Our Matrimonial Property Act deals with matrimonial property and exempt property. Here are two key sections you need to be aware of: 

7(1)  The Court may, in accordance with this section, make a distribution between the spouses of all the property owned by both spouses and by each of them.

(2)  If the property is

                                 (a)    property acquired by a spouse by gift from a third party,

                                 (b)    property acquired by a spouse by inheritance,

                                 (c)    property acquired by a spouse before the marriage,

                                 (d)    an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses, or

                                 (e)    the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses,

the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse, whichever is later, is exempted from a distribution under this section.

Matters to be considered

8   The matters to be taken into consideration in making a distribution under section 7 are the following:

                                 (a)    the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;

                                 (b)    the contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person;

                                 (c)    the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property;

                                 (d)    the income, earning capacity, liabilities, obligations, property and other financial resources

                                           (i)    that each spouse had at the time of marriage, and

                                          (ii)    that each spouse has at the time of the trial;

                                 (e)    the duration of the marriage;

                                  (f)    whether the property was acquired when the spouses were living separate and apart;

                                 (g)    the terms of an oral or written agreement between the spouses;

                                 (h)    that a spouse has made

                                           (i)    a substantial gift of property to a third party, or

                                          (ii)    a transfer of property to a third party other than a bona fide purchaser for value;

                                  (i)    a previous distribution of property between the spouses by gift, agreement or matrimonial property order;

                                  (j)    a prior order made by a court;

                                 (k)    a tax liability that may be incurred by a spouse as a result of the transfer or sale of property;

                                  (l)    that a spouse has dissipated property to the detriment of the other spouse;

                                (m)    any fact or circumstance that is relevant.

Calgary Unequal Matrimonial Property Division is stressful.  It pays to hire an experienced Calgary Unequal Matrimonial Property Division lawyer to guide you to a successful resolution of your case.

Call Lorne N. MacLean, QC or Aman Kahlon today to get started on a solution and a solid relationship exit strategy. Call 403-444-5503 now to book an appointment to discuss Calgary Unequal Matrimonial Property Division. Our firm handles medium to high net worth relationship breakdown cases as well as complex child custody disputes.

The post Calgary Unequal Matrimonial Property Division appeared first on MacLean Family Law.

The Calgary family lawyers at MacLean family law often are asked by clients “can interim orders be appealed?” Our Calgary family lawyers explain that interim orders are intended to be “rough justice: awards often made on incomplete evidence and often done with time pressure to get interim relief in place that allows parties and their children to exist until trial. Our top rated Calgary family lawyers also know that interim orders are crucial in setting the litigation stage and in some cases our Calgary family lawyers know an appeal of an interim order may be necessary and required.

Meet with us immediately in downtown Calgary at Banker’s Hall if you are involved in or have questions concerning a Calgary family law appeal. You can call us today at 403 444 5503 .

Interim orders in family cases rarely deal with final decisions on issues of child custody, parenting time, child support and spousal support. Our Calgary family lawyers tell parties that getting an early trial date and preparing for their Calgary family trial is more productive than an interim family appeal which may take months to be heard. However, where interim orders might prevent a proper resolution at trial because a final order has been made or where prejudice will occur to one party before the trial is heard a Calgary family law appeal may of an interim order may be necessary. When this situation occurs it pays to hire one of the best Calgary family lawyers like Lorne N. MacLean, QC founder of Western Canada’s largest family law firm.

Calgary Family Lawyers

Calgary family lawyers founder of MacLean Law Lorne MacLean, QC

The Calgary family lawyers and family appeal lawyers at MacLean Law are led by Lorne N. MacLean QC. Mr. MacLean has regularly conducted appeals in the BC Court of Appeal and in the Supreme Court of Canada and was counsel for Ms. Young in the famous child custody case of Young v. Young and for Mr. Leskun in the precedent setting  spousal support case of Leskun v. Leskun.

Recent Alberta Appeal Court Decision Points Out Interim Orders Are Not For Final Decisions

In the recent Alberta Court of Appeal case of Kerslake v Kerslake, 2016 ABCA 150 (CanLII), a Chambers judge was found to have exceeded his authority in making a final order. Our Calgary family lawyers extract the key parts of the decision. Interim orders are always subject to being replaced at the time of trial when more complete evidence is presented, witnesses are examined under oath and they are cross examined and expert evidence on contested issues can be assessed. Here is a nice summary of how interim orders work in Alberta:

[3]               Normally it is inefficient to appeal interim matrimonial orders, for the simple reason that they are only “interim”. All interim orders are subject to review and adjustment at trial: MacMinn v MacMinn (1995), 1995 CanLII 6247 (AB CA), 174 AR 261, 17 RFL (4th) 88 (CA); Hartley v Del Pero, 2010 ABCA 182 (CanLII) at para. 9, 27 Alta LR (5th) 248, 487 AR 248. That adjustment extends to issues like retroactivity, the commencement day for support, and the duration of support. The appropriate remedy for someone dissatisfied with an interim family order is therefore generally to advance to trial, not to appeal. [4]               The present proceeding is complicated because the chambers judge purported to make a final order:

. . . I’m going to cut this short in terms of the retroactive support, I’m going to direct that the retroactive support encompasses January ’14 to June ’14, under the terms of Justice Jerke’s order, . . .

So, it’s six times 1623, whatever the math gives us for those calculations, that’s the retroactive. Done, finished, like it or not, it’s done, you’re not litigating that any more unless you go to the Court of Appeal and let them sort it out, that’s it. And my math says it’s about around 15,000, but you’ll have to do the exact calculations. That’s the retroactivity. . . .

These reasons inferentially found their way into the formal order, which recites:

AND UPON the application of the Plaintiff for a final determination regarding retro-active child and spousal support;

The order then directs that retroactive support will “only” be for the period after January 1, 2014.

[5]               It was not open to the chambers judge to purport to make a final order: Neighbour v Neighbour, 2014 ABCA 62 (CanLII) at para. 12; Olson v Olson, 2014 ABCA 15 (CanLII) at para. 2, 37 RFL (7th) 414. In effect, the chambers judge purported to grant summary judgment on the issue of retroactivity, whereas the summary judgment procedure is not available for most family law matters: R. 12.48. In any event, the test for summary judgment is different from the test for interim matrimonial relief. Summary judgment requires that there be “no merit” to the competing position, which essentially amounts to there being no genuine issue requiring a trial. That test could not be met on this record, even if the summary judgment procedure was available. [6]               The respondent agrees the whole matter should go to trial. The appeal is therefore allowed. The support provisions of the order are interim only. The issues of retroactivity and the appropriate commencement date for and amount of support will be decided at the summary trial, along with the other issues.

If you have a Calgary family law appeal question why not get top notch advice from Calgary family lawyer Lorne N. MacLean QC at our downtown Calgary office? Call Lorne today at 403-44-5503.

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Calgary matrimonial property division lawyers 403 444 5503 – Fair Disclosure in Matrimonial Cases

Our Calgary matrimonial property division lawyers handle hundreds of family cases each year. Skilled Calgary matrimonial property division lawyers ensure they make and receive full financial disclosure in a Calgary matrimonial property division and support case. Top Calgary matrimonial property division lawyers understand that non disclosure in a Calgary family law case is the cancer of matrimonial litigation. Our Calgary matrimonial property division lawyers will aggressively ensure that you obtain proper disclosure so your matrimonial property division and financial support case is fairly negotiated or decided by a judge. In cases where you were tricked in the past by an untruthful spouse, we will pursue remedies such as setting aside of the contract or retroactive correction of financial support and division of hidden assets together with fines and contempt applications. Our Calgary matrimonial property division lawyers will ensure you are protected and that full and proper disclosure is obtained.

Calgary matrimonial property division lawyers 403-444-5503

Our Calgary family lawyers office is now open at:

­

MacLean Law | Calgary Office

Regus Bankers Hall
888 – 3rd Street. SW, 10th Floor, West Tower

Calgary, AB T2P 5C5

We are Western Canada’s largest family law firm and multiple winners of Vancouver’s best family law firm. We have been asked to open a Calgary office and are pleased to respond to the demands of our family law clients living and working in Calgary.

Calgary matrimonial property division lawyers

What is the law to ensure people can’t hide assets and pressure their spouses into improvident settlements?

Our Calgary matrimonial property division lawyers applaud the decision in Brown v. Silvera, 2009 ABQB 523 where the court awarded the wife over $15,000,000 of property that had been hidden from her through non disclosure and psychological pressure as well as solicitor and own client against her ex spouse.

Supreme Court of Canada Sets Aside Agreements When Non Disclosure and Psychological Abuse

The Calgary matrimonial property division lawyers at MacLean Law provide the following extract from Canada’s highest court on how disclosure is crucial in a matrimonial property division and financial support case. These decisions guide lawyers and parties to ensure fair agreements are reached and the court has the proper information to correctly decide a case.

[29]            Brandsema makes clear the law with respect to non-disclosure in a matrimonial negotiation which culminates in a matrimonial settlement agreement. The Supreme Court describes the tone in matrimonial negotiations as a “singularly emotional negotiating environment”. The court says that “special care must be taken to ensure that, to the extent possible, the assets … are distributed through negotiations that are free from informational and psychological exploitation.” (emphasis added) (at para. 1). [30]            On the question of disclosure, Abella J. in Brandsema indicates that under the common-law, each spouse has “a duty to make full and honest disclosure all relevant financial information” when negotiating separation agreements (at para. 47, see also paras. 5, 48-49). [34]            The Supreme Court in Miglin emphasized that the courts are not to overturn matrimonial property division agreements lightly because one of the goals of such agreements is certainty and finality. However, the overriding principle is whether both parties have entered into that agreement with complete information and without psychological exploitation.

Alberta Courts Don’t Tolerate Financial Trickery

Lorne N. MacLean, QC founder Calgary Division Of Matrimonial Property lawyers

In addition to the Supreme Court of Canada’s guidance, Calgary matrimonial property division lawyers also rely upon the Alberta common law and Alberta Rules of Court to ensure full and proper disclosure is made.

Our Calgary division of matrimonial property lawyers will assess the level of completeness of financial disclosure as well as assessing valuations made and profit and loss statements for companies to ensure there are no financial shenanigans at play. You can meet with Lorne N. MacLean, QC the founder of MacLean Law who has appealed more than once in the Supreme Court of Canada and multiple times in the BC Court of Appeal. His recent successes at the Calgary Court of Queen’s Bench has led to him being in high demand in Calgary as well as throughout BC.

An example of how the Alberta discloure rules work for Calgary Division Of Matrimonial Property lawyers comes from the leading case of Brown v. Silvera, 2009 ABQB 523 where the court sanctioned a husband for outrageous non disclosing behaviour and psychological intimidation:

[35]           Courts in Alberta have also set out these principles. Full “disclosure is fundamentally important to family law litigation” and to negotiations and separation agreements. Parties must enter into such agreements on an informed basis in compliance with the overall objectives of the Matrimonial Property Act – including a duty to disclose property such that a fair and equitable distribution is achieved. In particular, we must look to the overall objectives of the Matrimonial Property Act, R.S.A. 2000, c-M-8: Fercho v. Dos Santos, 2006 ABQB 879 (CanLII) at paras. 34-38, 153 A.C.W.S. (3d) 1171; Schultz v. Schultz, 2000 ABQB 866 (CanLII) at paras. 9-11, 282 A.R. 59. [36]           Non-disclosure is a fundamental breach of a property settlement contract: Fercho v. Dos Santos, at para. 42. Proper disclosure means presenting financial information in a clear, non-cryptic form that does not require additional investigation: Fercho v. Dos Santos, at para. 45. The Alberta Court of Appeal, in discussing disclosure pursuant to matrimonial property agreements, stated that “the production of such disclosure must be regarded as fundamental to the Agreement.”: Moore v. Moore, 2000 ABCA 102 (CanLII) at para. 10, 185 D.L.R. (4th) 93. [37]           When parties negotiate a separation agreement, they owe a duty of utmost good faith to each other to make full and complete documentary and factual financial disclosure. They must be fair to each other and not take advantage of any weaknesses they may perceive in the other. Co-operation between separating couples is to be encouraged. The “marital relationship is full of potential power imbalance.”: Leopold v. Leopold (2000), 2000 CanLII 22708 (ON SC), 51 O.R. (3d) 275 at paras. 126-128, 195 D.L.R. (4th) 717 (Ont. Sup. Ct. J.)

[41]            I adopt the reasoning of Justice Erb in Fercho v. Dos Santos, at paras. 40 and 45. She held that parties to a separation agreement are not expected to engage in a “scavenger hunt”, to unweave “a complex web of corporate or other intrigue” or to “make huge expenditures to untangle complex corporate structures” just to ascertain family assets. Justice Erb stated that behaviour of concealing assets is not to be encouraged. I agree.

[15]            I conclude that Silvera was psychologically exploited by Brown via the manner in which Brown provided misleading and incorrect information concerning the prospects for Somagen, Langerin, and the family finances. Brown intended to panic Silvera so as to rapidly conclude divorce proceedings and matrimonial property division. That matrimonial property division, conducted in haste, allowed Brown to conceal matrimonial corporate property that would otherwise have likely been detected, had there been a proper valuation of the family’s corporate interests in Somagen and Langerin. [16]            In light of Brown’s deliberate misstatement of the matrimonial corporate property and his psychological exploitation of Silvera, the Minutes terms and common-law principles allow Silvera to unwind the distribution of the matrimonial corporate assets. She has chosen to do so. [20]            In total $15,095,778.76 of Brown’s at-trial worth was either matrimonial property that would have been received by Silvera, were it not for Brown’s misinformation and psychological exploitation of Silvera, or benefits that Brown obtained as a consequence of his wrongful possession of that trust property.

Calgary Matrimonial Property Division Lawyers

What Do You Have To Disclose In an Alberta Matrimonial Property and Support Case As A Minimum?

Calgary matrimonial property division lawyers

Alberta Rule of Court 5.2 sets out the general rule for document disclosure in a court case and requires any document that:

“could reasonably be expected

(a) to significantly help determine one or more of the issues raised in the pleadings, or

(b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.”

to be disclosed and in family matters the disclosure needs to be made within 30 days of a demand for document disclosure.

Failure to produce can lead to penalties and an adverse inference being drawn by the court such as attributing a higher value to missing assets or to a higher income to the non-disclosing party. You can ask for an extension of time to collect the documents but you cannot count on this so collect documents early and fully.

What is A Notice to Disclose and What Do I Have to Disclose?

Our Calgary matrimonial property division lawyers explain that A “Notice to Disclose” (form FL-17) is a request for the information set out in s. 21 of the Federal Child Support Guidelines as well as some additional information and its disclosure demand is substantial:

Calgary Matrimonial Property Division lawyers tell their clients they need top produce a variety oif documents top enable and court to properly decide a matrimonial property division and child or spousal support case.

Individuals

• A copy of every personal income tax return you have filed for each of the 3 most recent taxation years
• A copy of every notice of assessment and reassessment issued to you for each of the 3 most recent taxation years, or a copy of the Canada Revenue Agency printout of your last 3 years’ income tax returns.
• If you are an employee, a copy of each of your 3 most recent statements of earnings indicating your total earnings paid in the year to date, including overtime, or where such a statement is not provided by your employer, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
• If you receive income from employment insurance, social assistance, a pension, workers’ compensation, disability payments, dividends or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.

Students

If you are a student, a statement indicating the total amount of student funding you have received during the current academic year, including loans, grants, bursaries, scholarships and living allowances.

Business Owners

The value of a business and it’s real income including pre-tax profits are crucial aspects of a Calgary matrimonial property division lawyers negotiating and litigation strategy.

If you are self-employed in an unincorporated business:

• (a) particulars or copies of every cheque issued to you during the last 6 weeks from any business or corporation in which you have an interest, or to which you have rendered a service;
• (b) the financial statements of your business or professional practice for the 3 most recent taxation years; and
• (c) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to yourself, or to persons or corporations with whom you do not deal at arm’s length, for the 3 most recent taxation years.

Partners

If you are a partner in a partnership,

• confirmation of your income and draws from, and capital in, the partnership for its 3 most recent taxation years.

Investors in Companies

If you have a 1% or more interest in a privately held corporation:

• the financial statements of the corporation and its subsidiaries for its 3 most recent taxation years;
• (b) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to yourself, or to persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length for the corporation’s 3 most recent taxation years; and
• (c) a record showing your shareholder’s loan transactions for the past 12 months.

List of Special Expenses for Child

A detailed list of any special or extraordinary expenses claimed (where child support is an issue) as well as copies of receipts or other documentation providing the amount of those expenses, namely:

• child care costs;
• (b) health care and extended medical and dental insurance premiums attributable to the child
• (c) uninsured health care and dental expenses;
• (d) extraordinary educational expenses;
• (e) post-secondary educational expenses; and
• (f) extraordinary expenses for extracurricular activities.

Beneficiaries of Trust

Calgary matrimonial property division lawyers at MacLean Law are involved in contingent and vested trust interest disputes frequently and understand the arguments made in these complex cases.

If you are a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s 3 most recent financial statements.

Bank Statements and Cancelled Cheques

Copies of all statements and cancelled cheques for all bank accounts held solely or jointly in your name for the most recent 6 months.

Credit Card Statements

Copies of credit card statements for all credit cards solely or jointly in your name for the most recent 6 months.

Your Budget

Your monthly budget of expenses (where spousal or adult interdependent partner support is an issue).

A sworn itemized list of your income, assets and liabilities (in the form attached as Schedule A).

RRSP’s Pensions Stock

Copies of the most recent statement for all RRSPs, pensions, term deposit certificates, guaranteed investment certificates, stock accounts and other investments in your name or in which you have an interest.

Exempt Property List

A list of any exemptions claimed (where the action involves the division of matrimonial property).

Our Calgary Matrimonial Property Division lawyers would be pleased to meet with you to explain the disclosure obligations and rights you have. If you feel you were tricked or you have been unfairly accused of making non-disclosure delay can be fatal. Call us now at 403-444-5503.

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Vancouver Judicial Case Conference Lawyers

Our top rated Vancouver judicial case conference lawyers regularly help clients prepare for and attend their family judicial case conferences (“JCC”). Vancouver judicial case conference lawyers know that a JCC is an informal court meeting where a Judge tries to help the parties and their lawyer settle the entire case, settle part of the case and failing these objectives get the case ready for trial and any interim applications. Our judicial case conference lawyers know that only limited procedural and disclosure orders can be made without the consent of both parties.  MacLean Law’s Judicial case conference lawyers tell our clients, that without consent, a Judge cannot make substantive orders on issues of family finances such as support or property division nor make orders regarding children.

What is a Judicial Case Conference?

Lorne MacLean, QC and Spencer MacLean -Vancouver judicial case conference lawyers lawyers

Our experienced Vancouver judicial case conference lawyers are ready to help you prepare for and attend your JCC. Hopefully the case can be settled, the issues narrowed, or failing that an early trial date set. Setting a trial date with one of our skilled Vancouver judicial case conference lawyers, is not a guarantee the matter will be heard at trial. Remember, only 3% cases go to trial which is a good thing, rather booking a trial date often sets an end point to get the case settled.

Our Vancouver judicial case conference lawyers can be reached across BC toll free at 1-877-602-9900 we have 5 offices to make things easier for you to get help. Our offices are located in Vancouver, Richmond, South Surrey, Kelowna and Fort St John BC.

Vancouver judicial case conference lawyers

Vancouver Judicial Case Conference Lawyers

The  recent Judicial case conference appeal case of Morales v Puri involved our BC Court of Appeal being sharply critical of a judge who made an order on guardianship and access at a judicial case conference. Vancouver judicial case conference lawyers know the judge was doing what they felt would assist the parties but they ran afoul of the clear rules that contested orders on crucial issues cannot be made at a JCC.

Lorne N. MacLean, QC heads our Vancouver judicial case conference lawyers team. MacLean provides today’s blog for our family law clients and the public who may be getting ready for their own JCC.

The BC Court of Appeal website provides their own tidy summary of the case which we have edited for you to make things clear:

Appeal from orders made at a judicial case conference.  The judge made orders concerning guardianship and access despite knowing that he lacked jurisdiction to do so as he did not have the parties’ consent. Rule 7-1 (Judicial Cases Conferences) of the Supreme Court Family Rules limits the types of orders that can be made at a judicial case conference without consent. 

Validity of the Order Made Without Consent

[23]         That a judge conducting a judicial case conference has a limited ability to make non-consensual orders was decided more than nine years ago by this Court inHarrison v. Harrison, 2007 BCCA 120, 64 B.C.L.R. (4th) 318.  That case dealt with former Rule 60E of the Supreme Court Rules of Court (Family Law Proceeding—Judicial Case Conferences), the predecessor of the present Rule 7-1 of the Supreme Court Family Rules.  Sub-rule 12 set out what could be done at a conference held under Rule 60E.  That sub-rule read:

At a judicial case conference, the judge or master may

(a)     make any of the following orders, whether or not on the application of a party:

(i)       the pleadings be amended or closed within a fixed time;

(ii)      a party deliver a list of documents or a statement in Form 89 within a fixed time;

(iii)      interlocutory applications be brought within a fixed time;

(iv)     examinations for discovery be conducted within a schedule that the court directs;

(v)      setting limitations on discovery procedures;

(vi)     experts’ reports be exchanged within a schedule that the court directs;

(vii)     the parties attend a mini-trial or settlement conference;

(viii)    the proceeding be set for trial on a particular date or on a particular trial list, subject to the approval of the Chief Justice, and

(b)     make any other order with the consent of the parties.

[Emphasis added.] [24]         In Harrison, the judge conducting a judicial case conference made a declaration under s. 57 of the now repealed Family Relations Act, R.S.B.C. 1996, c. 128, that the spouses had no reasonable prospect of reconciliation, a “triggering event” for the purposes of determining and dividing family assets.  That declaration was made without Mrs. Harrison’s consent, notwithstanding the fact that it was not one of the types of orders listed in sub-rule 12(a).  In holding that the judge should not have made the declaration, Chief Justice Finch stated: [22]      I am therefore of the view that there was no mutual consent to a s. 57 declaration being made at the Judicial Case Conference, and that the case conference judge erred when he said that he did “not need consent” to make the order.  It is clear that in the absence of consent, the s. 57 declaration was an order not contemplated by Rule 60E(12), and ought not to have been made at the Judicial Case Conference. [26]         While the judge in the present case acted out of concern for the well-being of the parties’ daughter, his decision to make orders he knew were beyond his authority is troubling.  It is axiomatic that judges, like everyone else, are obliged to follow the law.  In the present context, this Court’s judgment in Ribeiro v. Vancouver (City), 2004 BCCA 482 at para. 3, 41 B.C.L.R. (4th) 64, is particularly apt.  In that case, a judge made an order with respect to the conduct of an examination for discovery for which no provision existed in the then Rules of the Supreme Court of British Columbia.  In setting that order aside, Madam Justice Southin stated (at para. 3):

Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under the Court Rules of Practice Act.  It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so.  It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism.  The course of the court below is the law of the court and the course has never been to engage in such a practice.

[Emphasis added.] [27]         Also pertinent is the following from Halsbury’s Laws of Canada, Civil Procedure (2012 Reissue) (Markham, Ont.:  LexisNexis Canada, 2012), at HCV-11, “Responsibility for Enforcing Law”:

… it is of fundamental importance to the rule of law — and to the public’s respect not simply for the judicial system, but for the entire machinery of government — that the powers and jurisdictions of the judge be discharged, not only responsibly and fairly, but in accordance with the customs and conventions of Canada’s parliamentary democracy, and only as provided by the rules of law governing their employment.

[Emphasis added.] [28]         We cannot condone what occurred.  The judge’s decision to disregard the limits on his authority has needlessly increased the costs of this litigation and resulted in the unnecessary expenditure of judicial resources in both this Court and the trial court.  No doubt, it has caused the parties additional stress, exactly what the judge sought to avoid.

This case serves as a refresher for Vancouver judicial case conference lawyers and their clients on what can and cannot be done at a judicial case conference. We can help you achieve your objectives at a JCC. Call our Vancouver judicial case conference lawyers today at 1-877-602-9900.

Lorne MacLean QC, Vancouver judicial case conference lawyers

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Vancouver Unconscionable Separation Agreements

Fair Vancouver separation agreements are encouraged in BC but Vancouver and other Canadian Courts have routinely set aside Vancouver Unconscionable Separation Agreements. Our Vancouver Unconscionable Separation Agreements lawyers like the New York Court of Appeals decision in Christain on what unconscionable means in the context of Vancouver separation agreements which states:

..an unconscionable bargain has been regarded as one ‘such as no [person] in his [or her] senses and not under delusion would make on the one hand and that no honest and fair [person] would accept on the other’ . . . the inequality being ‘so strong and manifest as to shock the conscience and con- found the judgment of any [person] of common sense.

Vancouver Unconscionable Separation Agreements lawyer Brandon Hastings

Contact our Vancouver Unconscionable Separation Agreements team now. We have offices in Vancouver, Kelowna, Surrey, Richmond and Fort St John. Our new Calgary office is now open for business. Family law clients often rush to settle, are overwhelmed and do not get full disclosure and think they can trust their spouse to be fair. Sadly, these misperceptions often lead to a huge mistake.

Contact us now at 1-877-602-9900 so you don’t fall into these traps.

Vancouver Unconscionable Separation Agreements

The Vancouver unconscionable separation agreements decision from our BC Supreme Court  in the case of  N.P.T. v. L.M.E.D  rejected a claim by a spouse for setting aside a separation agreement based on it being unconscionable. The focus in cases involving Vancouver Unconscionable Separation Agreements is on how the agreement was negotiated at the time it was signed. If  dirty tricks are involved during negotiations between spouses you can expect the court to take action in a Vancouver Unconscionable Separation Agreements dispute. Contact us before you sign the separation agreement to ensure it is fairly negotiated. Here is what the judge said in NPT:

[147]     The first position of the wife is that the agreement should be set aside in its entirety for unconscionability. As noted, that remedy is impractical, as the wife has taken the benefit of some parts of the agreement, in that she received the home and cash. These were important terms for her at the time. She does not propose undoing that. [148]     She also does not seek to undo the parenting aspects of the agreement that she has relied upon and continues to rely on at this trial. She relied upon the parenting aspects of the agreement by filing it in the Provincial Court at about the same time as these proceedings were commenced, in order to render them enforceable as an order of the court. She continues to rely on them at trial, in that she argues that the husband agreed to allow primary residency of the children with her in 2012 despite her known and severe alcoholism. [149]     The leading decision in relation to setting aside a separation agreement for unconscionability is Rick v. Brandsema, 2009 SCC 10. [150]     I adopt my comments as to the application of common law principles including unconscionability set out in my recent decision in J.A.F. v. J.J.F., 2016 BCSC 300, at  paras. 161-162, where I quoted at length from the decision of Madam Justice Wedge in Akkor v. Roulston, 2009 BCSC 258 (CanLII). [151]     There, Wedge J. provided the following convenient summary of Rick:  

127     Since the time of this hearing, the Supreme Court of Canada issued its judgment in Rick v. Brandsema, 2009 SCC 10 (CanLII). That decision clarifies the general principle that spouses have a “duty to make full and honest disclosure of all relevant financial information” when negotiating separation agreements: Rick at para. 47. Madam Justice Abella explained the underlying rational of this duty at para. 48:

Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as a result, an agreement that courts are more likely to respect. Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference.

128     At para. 49, Abella J. went on to outline the factors a court will consider in deciding whether it is appropriate to intervene in a situation where a separation agreement has been negotiated on the basis of misinformation:

(i)         the extent of the defective disclosure;

(ii)       the deliberateness of the non-disclosure; and

(iii)       the extent to which the negotiated terms differ from the goals of the relevant legislation.

129     As noted by Abella J. at para. 51, “[i]n British Columbia, the operative legislative presumption for the division of family assets is an equal division, as set out in s. 56 of the [FRA]”. Pursuant to s. 65 of the FRA, a court may order an unequal division of family assets in situations where an equal division would prove unfair.

130     In Rick, a married couple entered a separation agreement with the stated mutual intention of dividing their assets equally. However, the husband undermined the negotiation process by writing a hidden cheque to himself from the couple’s joint bank account, covertly transferring funds to his brother-in-law, deliberately undervaluing assets and exaggerating debts, and purposely preying on his wife’s mental and emotional fragility. Consequently, the separation agreement departed significantly both from the objectives of the FRA and the intentions of the parties; the wife received approximately $650,000 less under the separation agreement than she would have otherwise been entitled to under an equal division of the couple’s property. The Court concluded that the combination of the misleading financial information and the husband’s psychologically exploitive conduct amply supported the trial judge’s decision to render the agreement unconscionable and unenforceable.

[152]     As I will explain in more detail below, bearing in mind the factors set out in Rick, at para. 49, summarized above, in my view the agreement cannot be set aside as unconscionable. There was no misrepresentation. There were no non-disclosed assets. There was no vulnerability or power imbalance that was taken advantage of. The negotiated terms do not differ substantially from the goals of the relevant legislation.

If you are involved in a Vancouver Unconscionable Separation Agreements dispute pick up the phone now. Better yet why not hire us before you negotiate and sign a Vancouver separation agreement so we can help you avoid the cost and hassle Vancouver Unconscionable Separation Agreements fights.

Vancouver separation agreement lawyer Lorne MacLean, QC

Our Vancouver Unconscionable Separation Agreements team can be reached at 1-877-602-9900.

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Vancouver Separation Date Lawyers

Vancouver Separation Date Lawyers help you deal with the tricky legal issue of when parties separated. Vancouver Separation Date Lawyers know that time limits apply for relief under our family property legislation and also for liability for spousal support both regarding how long you lived together and how long you were separated. Millions of dollars can be at stake depending on whose version of the separation date is accepted  by the Court and when it is an “I’m all in” case you need the best Vancouver Separation Date Lawyers on your side. The time limits are huge for unmarried couples who are or were in a marriage like relationship. Similarly, assets acquired post separation are not normally shared. Yet- in today’s fast rising real estate market this can mean millions are being fought over.

That’s where our skilled Vancouver Separation Date Lawyers get involved. Vancouver Separation Date Lawyers will explain your options and properly characterize whether you are still a couple or not.

Best Vancouver Separation Date Lawyers

As new property rules for common law spouses and married spouses are now at play, don’t you deserve to know your rights and obligations if you are considering a separation before it’s too late to get any relief?

Call us toll free across BC at 1-877-602-9900 to meet with us in Vancouver, Surrey, Kelowna, Richmond or Fort St John/ Dawson Creek, BC.

When You Separated Can Mean The Difference Between Zero and Millions!

Vancouver Separation Date Lawyers, MacLean, MacLean and Wolf

When you are in a marriage- the date you got married is usually very simple to prove. But  exactly when you started living together in a marriage like relationship is harder to prove as parties may strengthen their bond slowly overtime until their relationship becomes marriage like.

Vancouver Separation Date Lawyers Help You Determine If You Are Separated

Sometimes the most difficult date to prove for both married and unmarried couples is the date they separated. A recent BC Supreme Court case hs set some very helpful guidelines for when parties are a couple, when they are separated and what the test is for proving a separated couple is or has reconciled.

Does Living In A House Mean You’re A Couple? Not Always Says BC Judge

Vancouver Separation Date Lawyers know living separate lives in the same home can mean you have separated. But how does a Judge decide if you are a couple or not even if you are married? Our new Family Law Act guides Vancouver Separation Date Lawyers and specifically states you can be separate and apart in the same residence.

Lorne N MacLean, QC who leads our team of Vancouver Separation Date Lawyers has extracted the key parts of Wilson v. Wilson, 2016 BCSC 761 and bolded the really good parts:

[86]         In this case, division of property is governed by the Family Law Act, S.B.C. 2011, c. 25 [FLA].  For a separation to be effective, the party must show a physical separation, combined with at least one spouse’s intention to live separate and apart: Dhillon v. Dhillon, [1989] B.C.J. No. 823 (Q.L.) (C.A.), a case decided under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [87]         With respect to separation for the purposes of property division, s. 3(4) of the FLA provides:

(4) For the purposes of this Act,

(a) spouses may be separated despite continuing to live in the same residence, and

(b) the court may consider, as evidence of separation,

(i)   communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii)   an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

[88]         The actions referred to in s. 3(4)(b)(ii) typically include the avoidance of “accepted characteristics of marriage”, including carrying on activities in public, sharing financial resources, participating in significant family events, and having sexual relations: Nearing v. Sauer, 2015 BCSC 58 at para. 54, citing Kaur v. Sing, 2013 BCSC 313 at para. 87. The absence of such indicia may suggest a separation. Sexual relations are not, however, conclusive either way: Newth v. Booth, 2011 BCSC 317 at para. 17. [89]         There are many cases that address the characteristics of marriage, most often in the context of whether the parties formed a “marriage-like relationship”.  Here the question is not whether such a relationship was formed but whether it ended, and if it ended the question is whether the parties reconciled.  In all instances the focus is on the various characteristics of marriage. [90]         In M. v. H., [1999] 2 S.C.R. 3 the Supreme Court of Canada considered an element of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. F.3, that conferred certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship”, or marriage-like relationship:

[59] Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship.  They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.  While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics.  In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

[91]         In Weber v. Leclerc, 2015 BCCA 492, the Court of Appeal addressed the indicia of a spousal relationship in the context of the FLA.  In doing so, the court cited Austin v. Goerz, 2007 BCCA 586 where that court, after concluding that financial dependence is no longer considered an essential element of a marital relationship, said:

[58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:

[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Emphasis omitted.] [92]         In the paragraph following that quote, the court in Weber continued: [22] Austin establishes that the question of whether a cohabiting couple are in a “marriage-like relationship” is a question of mixed fact and law that requires a broad approach: [62] The chambers judge properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”  She had regard to all aspects of their relationship, including that there was minimal sharing of expenses and no commingling of assets. Based on the evidence it was open to the chambers judge to reach the conclusion she did and there is no basis on which this Court can interfere: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 22.

[23] The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24] The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[93]         With that legal framework, I now turn to an analysis of the facts in this case. [96]         I am satisfied, for reasons I will expand upon shortly, that the parties separated in or around 1995.  There is no real question about that.  The real question is whether the parties reconciled later on.

[109]     Although there was continued interaction between the parties after 2003, including loans or monies given to Mr. Wilson by Ms. Wilson, occasional car rides, attendances by Ms. Wilson at a few Wilson family events and an attendance by Mr. Wilson at Ms. Wilson’s citizenship ceremony, given the preponderance of contrary evidence I find these limited aspects to be insufficient to establish that the parties reconciled or maintained a marriage-like relationship after 1995.

[110]     For these reasons, I conclude that: (1) the parties separated in or around 1995; and (2) the evidence does not establish that they reconciled or otherwise resumed or maintained a marriage-like relationship after that date.

In this case the former husband received no share of a real property and no support and had to pay damages for trespass for staying on property after the former wife demanded he leave. If he hired a top one of our top Vancouver Separation Date Lawyers early on perhaps things would have gone differently. Call us today 1-877-602-9900.

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Surrey Equal Division of Family Property 

Our Surrey equal division of family property lawyers know that the test to obtain more than half of Surrey family property on relationship breakdown is now harder than ever. Who paid for something,  who did more chores, or who earns more or less when a relationship breaks down are unlikely to affect a Surrey equal division of family property case.

Vancouver judicial case conference lawyers

Call our top Surrey Equal Division of Family Property lawyers now if you want to know your rights and if you need help in fairly dividing family property now at 604-576-5400. Click here to meet us right away.

Surrey Equal Division of Family Property

A number of Surrey equal division of family property cases have been decided since our new Family Law Act came into force in March of 2013. Surrey equal division of family property decisions help lawyers and their clients understand the new rules so cases can be settled out of court because the rules are clear.

Most  people are pleased to hear that 97% of Surrey equal division of family property disputes are resolved through negotiation and mediation. The fact our Surrey equal division of family property lawyers are top rated in Surrey and Vancouver means you can count on us to help you achieve fairness and to get a head start on a successful post separation life.

Surrey separation agreement lawyer, John Nelson

New Cases Says Bar Set High To Depart From Surrey Equal Division of Property

John Nelson, Brandon Hastings and Aman Kahlon work with founder Lorne N. MacLean out of our Surrey family law offices. Our Equal Division of Family Property lawyers are fluent in Punjabi, Hindi, Urdu and Mandarin as well as English and we will calmly explain your options and help you move forward. Our clients rank us as the best family law firm in Greater Vancouver.

Surrey Equal Division of Family Property

The recent case of 2016 BCSC 910 Hodel v. Adams  provides a good summary of how the Surrey Equal Division of Family Property test works:

[35]         Pursuant to s. 95 of the FLA, a court may order an unequal division of family property if it would be “significantly unfair” to divide it equally. In considering whether property should be divided unequally, a court may consider the list of factors set out in s. 95(2). The factors Mr. Hodel says have some relevance in this case include subsections: (a) duration of the relationship; (c) his contribution to her career potential; and (g) the fact that Ms. Adams took and disposed of family property. The list of factors in s. 95(2) also includes:

(i)   any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

[36]         The court may also consider the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses, but only if the order made respecting spousal support does not meet the objectives set out in s. 161 of the FLA. That is not an issue in this case, given my decision set out below that there is no basis for Ms. Adams’ spousal support claim.

[37]         The presumption under the FLA is that family property should be divided equally. The discretion to divide family property unequally is limited to those situations where it would be significantly unfair to divide the property equally. Courts considering this language have emphasized that the high standard of “significant unfairness” will only be met in limited situations where equal division would produce obvious or compelling unfairness. In L.G. v. R.G., 2013 BCSC 983 at para. 71, N. Brown J. cautioned that, “[o]nly when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge order depart from the default equal division.”

[38]         In Remmem v. Remmem, 2014 BCSC 1552 at para. 44, I noted that the test in s. 95 is more difficult to meet than the former test under the Family Relations Act:

[44]      … in order to exercise the discretion, it is no longer sufficient to find that a division of property is merely “unfair”. There must be a finding that the division of property pursuant to the statutory scheme is “significantly” unfair. The Concise Oxford English Dictionary defines “significant” as “extensive or important enough to merit attention.” Significantly is understood to mean more than a regular impact – something weighty, meaningful, or compelling. In other words, the legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2).

[39]         In Jaszczewska v. Kostanski, 2015 BCSC 727, Baker J. made similar observations. She noted at paras. 162 and 163 that just because the parties in a relationship make contributions which are different in nature, does not mean that there should be an unequal division of family property under the FLA:

[162]    In enacting the Family Law Act and adopting a new regime for allocating family property, the Legislature, in my view, intended that the exceptions to equal division would not become the norm.  In almost any spousal relationship the nature of the contributions made may be unequal in some sense, but in providing for the equal division of family property (after taking into account excluded property or a contribution to value derived from excluded property), the Legislature intended the general rule to prevail unless very persuasive reasons can be shown for a different result.

[163]    Had the Legislature intended unequal contribution to be a significant factor justifying unequal division of family property under s. 95, surely the Legislature would have specifically said so.

[40]         The circumstances of this case are not unusual. The parties had a relatively long-term relationship. While they maintained some separate bank accounts, they also maintained joint accounts and participated as partners in most financial matters. They purchased items for the Family Home together. They took out a number of loans jointly in order to acquire personal property. They owned the Family Home jointly and took out the mortgage together. They each contributed to the family finances through their employment earnings. Mr. Hodel earned more than Ms. Adams, but when Ms. Adams was trained to operate equipment, she obtained a position in which she earns an income similar to Mr. Hodel’s. Ms. Adams did more work on the farm and took some time off of work to do that.

[41]         If the RSPs of both parties are divided equally along with the other family property, the parties will leave the relationship in a position of financial equality. They both have good jobs and are of similar ages. They both have many working years left to build up retirement savings, although Mr. Hodel is a little younger and so has a slightly longer working life ahead of him. It would not be unfair, let alone significantly unfair, for them to leave the relationship in a position of financial equality. Nor would it be unfair that they equally benefit from their collective retirement savings. I arrive at that conclusion having taken into account the fact that Ms. Adams will receive an additional $10,000 from the equity in the Family Home. That does not alter the balance between the parties in a significant way.

[42]         None of the factors in s. 95(2) relied upon by Mr. Hodel support an unequal division of family property. Relationships of short duration may support an argument that family property should not be equally divided. Relationships of longer duration tend to support equal division of family property. Here, the parties were together for 12 years and had established what could be described as a joint family venture. The duration of their relationship and the way they managed their finances does not support an unequal division of family property.

[43]         The fact that Mr. Hodel contributed more to the family finances and provided financial support to Ms. Adams while she retrained is also not a reason to divide the family assets unequally. As noted in Jaszczewska, the contributions made by spouses in a relationship will often be different. Mr. Hodel’s support for Ms. Adams did not cause any detriment to his career or the parties’ accumulation of assets. The support did not result in Ms. Adams acquiring qualifications or skills which give her an ability to earn income which is superior to his.

[44]         The fact that Ms. Adams took or disposed of items of property (the skid steer and the flat deck trailer) is not a reason to divide family property unequally. She must account to Mr. Hodel for any property she retains, just as he must account to her for any property that he retains.

[45]         In summary, the amounts in the parties’ RSP accounts will be divided equally to the extent that those were accumulated during the relationship. On the basis of the evidence and argument before me, I am not able to determine those amounts with any precision. If the parties cannot agree on the amounts, that issue is referred to the Registrar for determination.

In a nutshell , unequal contributions will rarely meet the high threshold to depart from the presumption of Surrey Equal Division of Family Property.

Equal Division of Family Property lawyer Brandon Hastings

Shorter marriages, gross disparity in contributions, long separations, cases where someone disposed of assets, cases where hidden assets are involved and cases where support cannot alleviate financial hardship remain exceptions that may apply to enable unequal division.

The teaching point for these  Surrey equal division of family property cases is to not blindly think you are entitled to more than half. Every case is different so call one of our  Surrey equal division of family property lawyers if you are going through a separation.

Our skilled team of family lawyers will help you settle you  Surrey equal division of family property case. We have 5 offices across BC located in Kelowna, Surrey, Vancouver, Richmond and Fort St John as well as a downtown Calgary office.

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Calgary Relocation and Child Mobility Lawyers 

Our Calgary relocation and Child mobility lawyers (403-44-5503) believe a child does not forfeit the love and guidance of two caring and concerned parents merely because of relationship breakdown. Our Calgary relocation and child mobility lawyers also know that Calgary child mobility cases, also known as Calgary Child relocation cases, present as the most difficult cases a family law judge hears. Our Calgary relocation and Child mobility lawyers know that regardless of what decision a judge makes, a child will often spend less time with one parent than they do before the mobility decision. Many times parents focus on the change of surroundings for a child and compare the pros and cons of each competing “place” a child will reside in. Our top Calgary relocation and Child mobility lawyers know that sometimes the status quo and primary factor for the child is not the place where they live but the strength of the nurturing bond they have with a parent. In short, our Calgary relocation and Child mobility lawyers  often remind the Court that the status quo is often more about a person than a place.

Calgary relocation and Child mobility lawyers 403-444-5503

Calgary Relocation and Child Mobility Lawyers at MacLean Family Law 403-444-5033

In the recent Alberta Court of Appeal decision of McAlpine v Leason, 2016 ABCA 153 (CanLII) the Alberta Court of Appeal reiterated the principles that Calgary relocation and Child mobility lawyers must follow in a child mobility dispute.

The keys to a child relocation case will involve the strength of each parent’s bond, the type of parenting arrangement that exists at the time of the move, the respective care plans of the moving and non moving parent, whether both parents could move to a new location and the arrangement for contact assuming a move occurs. Top Calgary relocation and Child mobility lawyers will reviews the strengths and weaknesses of your case and create an action plan.

Status Quo Can Be Person Not A Place Say Calgary Relocation and Child Mobility Lawyers

Calgary relocation and Child mobility lawyers have extracted from the key parts of the McAlpine v Leason decision:

[1]               This is a mobility case. The issue is whether it is in the best interests of an (almost) seven-year-old girl to have her primary care transferred from her mother to her father in Calgary rather than moving with her mother to Winnipeg, given her mother’s decision to relocate from Calgary to Winnipeg. The trial judge ordered this change and denied the mother’s application to take the child with her. The appeal also demonstrates how the effluxion of time can have serious consequences, leading to a change in circumstances that makes the decision under appeal less sustainable, and requires us to consider what a court of appeal can or ought to do in those circumstances. [4]               The trial judge found both parents had a good relationship with the child. The trial judge was favourably impressed with the father’s parenting plan in contrast to that of the mother. The father’s plan involved the mother flying several times a month as a WestJet employee to Calgary to parent the daughter and to live, free of charge, in accommodation provided by the father, in a basement suite in a rental property he owns next door to his own home. [6]               The main error here is a variant of the analytical problem identified by this Court in Christmas v Christmas, 2005 ABCA 213 (CanLII), 367 AR 172, Spencer v Spencer, 2005 ABCA 262 (CanLII), 257 DLR (4^th) 115 and RJF v CMF, 2014 ABCA 165 (CanLII), 575 AR 125. This Court has repeatedly cautioned against approaching the best interest test by comparing the effect on children if they are permitted to relocate with the custodial parent versus maintaining the status quo (i.e. the children remaining with the custodial parent in their current location). Approaching the issue in that manner ignores a key component of the Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, 134 DLR (4^th) 321, test – the effect of removing the child from the care of his or her primary caregiver after that parent moves. [7]               The trial judge concluded that the child would be harmed by the proposed move, since it would result in reduced contact with one parent or the other: para 89. He also commented that the existing arrangement was working well and that disrupting it might harm the child: para 131. Rather than wrestling fully with the impact on the child of being separated from her mother, the trial judge focused on what he saw as the inevitability of the child suffering harm as a result of the impending move and sought to minimize the number of things that would change for her.

[11]           It is an error to presume, as the trial judge seems to have done here, that it is never in the best interests of a child to move with his or her primary caregiver. As this Court recognized at para 55 of MacPhail v Karasek, 2006 ABCA 238 (CanLII), 273 DLR (4^th) 151, a move will always result in decreased contact with one parent. The trial judge’s approach is really another way of saying that it would be best for the child to maintain the status quo, without considering the effect on the child of staying in her current location without the primary caregiver. Although the trial judge commented that the status quo was off the table, his approach to the relevant factors suggests otherwise. This is the kind of error discussed in MacPhail and the other cases cited above, and it is an error in principle.

[14]           As noted earlier, the trial judge failed to properly consider what the impact on the child would be if she were removed from the care of her mother for more than 50% of the time. The evidence makes clear it would be significant. The impact on the child were she to be removed from the care of her mother and be without her new sibling makes this a more pressing concern. This Court has noted the importance of the sibling relationship and the need to consider it in assessing the best interests of the child on a mobility application: MacPhail at para 33.

16]           In the circumstances, we are satisfied the decision below reveals serious errors in principle. Having regard to the record before us and the fresh evidence, we conclude that the child’s best interests are best served in maintaining a close tie with her parents and her new sibling. The best way of promoting that is by allowing her to move to Winnipeg with her mother. We allow the appeal on the issue of mobility, allowing the mother to move to Winnipeg with the child on the following conditions: Within 15 days of the date hereof the parties agree on a comprehensive parenting plan that includes regular and consistent visitation with the father.

Calgary relocation and Child mobility lawyers help guide parents to a solution that is in the best interests of their children.

Lorne N. MacLean, QC founder Calgary Division Of Matrimonial Property lawyers

Meet with our founder Lorne N. MacLean,QC if you need the help from our top Calgary relocation and Child mobility lawyers. Call us now at 403-444-5503.

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Vancouver Cross Over Spousal Support Alert

Our top rated family lawyers warn that, clients and nonspecialist lawyers dabbling in family law, must be very aware of the Vancouver cross over spousal support issue before settling their spousal support cases. Many clients and lawyers are aware we have 2 formulas for calculating spousal support under the Spousal Support Advisory Guidelines.  However, Vancouver cross over spousal support requires a changeover from the with child formula for calculation support to the without child formula for calculating spousal support. Sadly, many clients and non specialized lawyers are completely unaware of Vancouver cross over spousal support principles. This can lead to disastrous results for a recipient spouse in a medium to long marriage because of a failure to properly consider Vancouver cross over spousal support issues. Fatal errors can also occur in lump sum support calculations if you don’t properly consider Vancouver cross over spousal support. Don’t make the biggest mistake of your life call us now at 1-877-602-9900 in Calgary, Vancouver or any of our 4 other offices in Surrey, Richmond, Kelowna and Fort St John BC.

Vancouver Cross Over Spousal Support lawyers

Don’t Make A Huge Mistake And Forget About The Vancouver Cross Over Spousal Support Issue

As Vancouver Vancouver Cross Over Spousal Support lawyers, we warn spouses who have children of medium to long marriages to be aware that spousal support amounts are reduced by the child support paid because spousal support is factored in AFTER child support is calculated as paid. Good Vancouver spousal support lawyers will explain to their clients that child support takes priority over spousal support. In cases where the paying spouse’s income is modest spousal support can be zero after child support is calculated and paid.  But after child support ends spousal support should be payable in many cases and for a significant period of time. In medium to long duration marriages our Vancouver Cross Over Spousal Support  are aware that a cross over of support formula occurs when all children are adults and no more child support is payable. Our Vancouver Richmond Spousal support lawyers also know that spousal support should increase as each child becomes independent and child support declines until all children are adults when it ceases completely. A top Vancouver Cross Over Spousal Support lawyer will have reviews of spousal support as part of a court order or settlement to ensure spousal support isn’t zero when the SSAG say it should be paid as child support is reduced towards zero.

Don’t Make A Huge Lump Sum Spousal Support Mistake Regarding Vancouver Cross Over Spousal Support

Vancouver judicial case conference lawyers

Many clients and non specialist family lawyers need to  understand that lump sum spousal support calculations need to factor the crucial Vancouver Cross Over Spousal Support factor into any settlement or court case. Regular reviews need to be specified to coincide with children graduating from high school or university or thousands of dollars could be lost by the recipient spouse.

Spousal Support Might Have to Exceed Maximum Time Limits

The Author’s of the SSAG point out that “The without child support formula will be used to redetermine the amount of spousal support after all children are grown up. If the amount of spousal support was inadequate in the past because of the priority to child support, spousal support may have to continue beyond the maximum time limits generated by the formula in order to adequately satisfy the recipient’s compensatory claims.

Recent Case Correctly Applies Vancouver Cross Over Spousal Support Formula And Correctly Has Review Of Support When Child Support Ceases

In this week’s case of Ashak v. Ashak  the court noted that child support payments led to no spousal support being payable but the judge was aware that in the future the children would become independent and then spousal support would be payable on either of the with or without child support formula. Firstly the court dealt with the wife’s contribution to the husband’s career and her own career loss on an equal division of the family property and then the court looked at spousal support and noted a review would need to occur to ensure the spousal support took into account Vancouver cross over spousal support.

[37]         In Nearing v. Sauer, 2015 BCSC 58 at para. 141, the court outlines that s. 95(2) of the Family Law Act allows the court to consider a spouse’s contribution to the career or career potential of the other spouse or a spouse’s detrimental impact on to the value of family property or potential family property, which focuses on the spouse’s direct actions vis-à-vis the value of family property.

[38]         I accept Mrs. Ashak’s submissions that she interrupted her career to stay at home and raise the children. Rather than return to work as a legal assistant, she sought alternate work which would permit her to continue to perform her household duties, first as a realtor and later as an insurance agent. Mr. Ashak’s career as a truck driver was not affected as Mrs. Ashak’s was. [39]         I am thus satisfied that by assuming the responsibility as she did for caring for the children in the household, Mrs. Ashak relieved Mr. Ashak of the responsibility for doing so and contributed to his career. By staying at home and taking the career adjustments which she did, her earnings were negatively affected. However, I am not satisfied that in the circumstances of this family, it would be significantly unfair to divide the family property equally. Both parties worked for most of the marriage and earned relatively modest incomes. 

Spousal Support

[48]         Section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), and ss. 160, 161, 162 and 165 of the Family Law Act confers the court jurisdiction to make an order for spousal support. Both acts provide objectives for such orders, including the need to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown (Divorce Act, s. 15.2(6)(a); Family Law Act, s. 161(a)) and to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage (Divorce Act, s. 15.2(6)(b); Family Law Act, s. 161(b)). [49]         Both likewise provide that the court is required to take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited and the functions performed by each spouse during cohabitation (Divorce Act, ss. 15.2(4)(a) and (b); Family Law Act, ss. 162(a) and (b)). [50]         Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the receipt of an economic advantage upon the other spouse: Chutter v. Chutter, 2008 BCCA 507 at para. 50. As stated in Moge v. Moge, [1992] 3 S.C.R. 813 at 867-68, the most significant economic consequence of marriage or marriage breakdown usually arises from having children, where a wife is generally required to leave or cut back her participation in the workforce in order to care for the children.

[51]         Mr. and Mrs. Ashak cohabited for 20 years. Mrs. Ashak left full-time employment after the birth of their second child. She has worked reduced hours to keep up with her child-care duties. Her doing so has contributed to Mr. Ashak’s business. She is entitled to compensatory spousal support.

[52]         With respect to spousal support, based on their current incomes as determined, the Spousal Support Advisory Guidelines suggest no payment to Mrs. Ashak. However, that amount is limited by the priority of child support, which leaves no funds available for support to Mrs. Ashak. Considering the duration of 9.5 to 19 years suggested by the Guidelines, it is likely Mrs. Ashak’s entitlement will continue past the time the children are no longer children of the marriage. Given the uncertainty of this date, the order will provide for a review of the quantum and continuing duration of spousal support, if any, when the children are no longer children of the marriage.

This area of the law is complicated so why not meet with us so we can do the complex computer generated calculations so you know your options in cases involving Vancouver cross over spousal support. It’s your future and you deserve the best post separation lifestyle so call us at 1-877-602-9900.

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Custody and Parenting Arrangement Lawyers

Our custody and parenting arrangement lawyers led by Lorne N. MacLean, QC, have noticed how custody and parenting arrangements have progressed over time moving from the one primary parent theory in the 1970’s to joint custody in the 1980’s and 1990’s but not necessarily equal time to the now more common 50/50 shared parenting time regimes. Lorne N. MacLean QC is proud to be on the vanguard of shared parenting plans in BC and Calgary and to be winning counsel on Canada’s most famous child custody case Young v. Young.  MacLean Law is Western Canada’s largest family law firm with offices in Calgary, Vancouver, Kelowna, Surrey, Richmond and Fort St John BC as well as Winnipeg Manitoba. If you need a skilled trial lawyer or a savvy team of Custody and Parenting Arrangement Lawyers to negotiate your custody case, then call us today.

Our skilled custody and parenting arrangement lawyers will meet with you to develop a strategy to resolve matters so you can move forward with your life.

Lorne MacLean, QC and Audra Bayer Surrey custody and parenting arrangement lawyers

Lorne N MacLean, QC one of the top custody and parenting arrangement lawyers in Canada often tells clients and the courts: “ A child doesn’t forfeit the love and guidance of two caring and concerned parents merely because of relationship breakdown”

Recent Case For Custody and Parenting Arrangement Lawyers

A recent BC case which applied both federal and provincial legislation and which cited the key principle from Young v. Young gives a nice snapshot of the law for clients as well as for  our top rated custody and parenting arrangement lawyers.

Vancouver’s Best Family Lawyers

Court Reviews Law Then Awards Equal Parenting Time on A 2 Week Schedule

In the Recent BC case of D.M.L. v. D.B.L the court reviewed the statutory and case law as well as hearing expert evidence form Dr Elterman, a well known psychologist who prepares parenting and child assessments and from both the parties themselves. At the end of the day the judge established a two week schedule that shared the time and the weekends for the children equally between their parents. Here is what the court noted were the key legal principles:

Custody and Parenting Arrangements: Applicable Legal Principles

[184]     Section 16(1) of the Divorce Act authorizes the court to make orders respecting custody of and access to any child of the marriage. [185]     Section 16(8) provides:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

[186]     On a custody application, the court’s only consideration is the best interests of the child, having regard to the factors set out in s. 16(8).

 

[187]     The focus is on the best interests of the child, rather than the interests and rights of the parents: Gordon v. Goertz [1996] 2 S.C.R. 27 at para. 49.

[188]     There is no presumption in favour of the status quo, or joint or sole custody. The court must determine the best interests of the child in the particular circumstances of each case: Nunweiler v. Nunweiler, 2000 BCCA 300; Robinson v. Flyk (1996), 28 B.C.L.R (3d) 21 (C.A.); E.L.S. v. C.A.S., 2012 BCSC 1224.

[189]     In making an order for custody or access, the court will not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child: s. 16(9).

[190]     Section 16(10) of the Divorce Act requires the court to give effect to the maximum contact principle:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[191]     The maximum contact principle is not absolute. The court will give effect to the maximum contact principle to the extent that it is consistent with the best interests of the child: Young v. Young, [1993] 4 S.C.R. 3 at para. 18. [192]     Section 37(2) of the FLA provides a useful but non-exhaustive list of factors which the court may also take into account when assessing the best interests of the child on a custody application under the Divorce Act: Puzzobon v. Puzzobon, 2013 BCSC 1226.

[193]     Section 37(2) of the FLA provides:

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a) the child’s health and emotional well-being;

(b) the child’s views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child’s life;

(d) the history of the child’s care;

(e) the child’s need for stability, given the child’s age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

[194]     An order will not be in the best interests of the child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being: FLA s. 37(3).

[195]     The court may make a custody order under the Divorce Act supplemented by orders related to guardianship and parenting arrangements under the FLA that are not operationally incompatible.  Both the Divorce Act and the FLA are directed to the same purpose: the best interests of the child:  B.P.M. v. A.E.M., 2014 BCSC 453; Rana v. Rana, 2014 BCSC 53; N.U. v. G.S.B., 2015 BCSC 105.

[196]     Under s. 39 of the FLA, each parent of the child is the child’s guardian unless after separation the court makes an order providing that a parent is not the child’s guardian.

MacLean Law’s Custody and Parenting Arrangement Lawyers will help you develop a proper parenting plan.  Call us toll free across Bc and Alberta at 1-877-602-9900.

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Calgary Adult Child of Marriage Child Support

One of the more difficult aspects of Calgary child support, involves cases of children over the age of majority when Calgary Adult Child of Marriage Child Support is claimed. Calgary family law separated parents often ask our Calgary family lawyers what the rules are for disputed Calgary Adult Child of Marriage Child Support cases. Our Calgary family law lawyers would be pleased to answer your Calgary child support questions at our offices located in Banker’s Hall in downtown Calgary.

Calgary Adult Child of Marriage Child Support lawyers 403-444-5503

What Is The Test For Calgary Adult Child of Marriage Child Support?

How do you balance a child’s need for higher education or their special talents against them not being able to support themselves as young adults because their schooling or training may prevent them from working? How do you ensure a child gets serious about their responsibility to take the beginning steps to financial independence after separation of their parents? What about a child taking 1 course per term or who travels in the summers and doesn’t get a summer job?  These thorny issues come up frequently for our skilled Calgary Adult Child of Marriage Child Support lawyers.

Who Bears The Onus Of Proving A Need For Calgary Adult Child of Marriage Child Support?

Calgary Adult Child of Marriage Child Support cases place the onus on the parent claiming Calgary child support to prove the child is still entitled to support under the Divorce Act or Calgary child support legislation. In Calgary the age of majority is 18 years of age.

A recent Alberta Court of Appeal case of Kohan v Kohan, 2016 ABCA 125 (CanLII) recently reiterated the test to be applied in Calgary Adult Child of Marriage Child Support disputes and we have extracted the key paragraphs and bolded the really good stuff for you.

Adult Children of the Marriage

[13]           The respondent successfully argued at trial that the eldest child, Nakita, remains a “child of the marriage”, even though she was 19 years of age at trial.

[14]           The Divorce Act, RSC 1985, c. 3 (2nd Supp.), stipulates when an adult child can remain a “child of the marriage”:

2(1) “child of the marriage” means a child of two spouses or former spouses who, at the material time,

(a)   is under the age of majority and who has not withdrawn from their charge, or

(b)   is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

This definition specifies that the adult child must be “unable” to withdraw from the parents’ charge; that wording signifies something more than a mere lifestyle choice to remain dependent. The case law establishes that an adult child who is continuing with his or her education can remain a child of the marriage. Education is recognized as an “other cause” within the definition.

The [trial judge’s] reasons tie her inability to withdraw from her parents’ care both to her continuing education, and to her inability to make sufficient income from her singing career. There is no discussion of an “other cause”, nor of whether she was “unable” to withdraw from her parents’ care. There are no findings of fact explaining how she came to be 19 years of age but without a high school education. There was no consideration of the factors normally used to determine if an adult child is a “child of the marriage”: Olson v Olson, 2003 ABCA 56 (CanLII) at para. 19, 320 AR 379.

[18]           There is a strong expectation that most teenagers will graduate from high school by the time they are 18 or 19. Obviously, not every student can meet that timeline, but deviations from it call for some explanation. An adult child cannot claim indefinite dependency by completing high school one course at a time, and thus remain a child of the marriage into middle-age. An adult child who has resolved to complete her high school, and looks to her parents to fund that education, is expected to focus diligently on that objective, and pursue it full-time in a structured environment.

[19]           The record discloses that Nakita is finishing her high school by correspondence while she “pursues her singing career”. This is a career and lifestyle choice that she has made. She is entitled to pursue her singing career, and should be encouraged in that regard, but she is not entitled to have it funded by her parents: Ouwerkerk v Ouwerkerk, 2007 ABQB 156 (CanLII) at paras. 19-21, 415 AR 358; Olson v Olson at paras. 29-38. There was no evidence on this record as to when, if ever, Nakita might be able to support herself in the music business. From what one can tell from this record, she may well be taking correspondence courses one at a time; there is no explanation on this record why she cannot also be working full time if that is her total course load. Finishing her high school does not appear to be the real reason why she cannot “withdraw from her parents’ support”. If she is still a child of the marriage, it is not because she is pursuing her education; the reason she has not withdrawn from the care of her parents is because of her career aspirations.

[20]           The burden of proving that Nakita remained a child of the marriage was on the respondent, and the record cannot support that finding of fact. The respondent notes that both parties agreed that Nakita need not be called to testify at the trial, and that neither would attempt to draw an adverse inference from her absence. That, however, did not displace the obligation of the respondent to prove her case. If nothing else, there was a good bit of documentary evidence about Nakita’s present and intended educational plan that was simply missing from this record.

[24]           The records of Nakita’s schooling entered into evidence were wholly inadequate to meet the burden of proof. There was nothing to explain why she had only 48 credits by age 19. There was no evidence on how many courses she was taking each semester, how many courses she had left, or when she might expect to complete high school. She claimed she had some unrecorded credits from Banff from 2013, but failed to prove them. The evidence disclosed that for one month in 2015 Nakita was at an ashram in India studying meditation; this is inconsistent with a diligent pursuit of her education. On this evidence it was impossible for the trial judge to conclude she was “making good progress”, or had been diligently pursing her education. The weight of the evidence is that she at best found it convenient not to withdraw from her parents’ care because she was pursing her singing career. Her attempts to finish her high school education were a secondary consideration. If she was a child of the marriage, it was not for educational reasons. [25]           The child support award set out in para. 1(b) of the Judgment is set aside.Notwithstanding the deferential standard of review, the respondent failed to prove on a balance of probabilities that Nakita remained a child of the marriage after her 18th birthday.

Higher education for adult children is a legitimate goal but the Calgary Adult Child of Marriage Child Support decision in Kohan shows adult children need to take their education and their responsibilities to be a productive member of society seriously. Like their parents they are encouraged to make a living the old fashioned way with hard work and dedication.

Calgary Adult Child of Marriage Child Support

Lorne MacLean,QC -founder MacLean Law
Calgary Adult Child of Marriage Child Support lawyer

If you have a question concerning Calgary Adult Child of Marriage Child Support call our highly ranked Calgary family lawyers to set up an appointment by calling us today at 403-444-5503.

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Calgary Lump Sum Spousal Support

Calgary Lump Sum Spousal Support is often sought by one or both spouses in a Calgary spousal support case as a way to achieve finality after a Calgary family law separation. Our Calgary Lump Sum Spousal Support know that in disputed cases these Calgary Lump Sum Spousal Support awards will be rare. There is no tax deduction for a Calgary Lump Sum Spousal Support payment unless it can qualify as a lump sum for past periodic arrears.

Calgary Family lawyer and founder of MacLean Law, Lorne N MacLean, QC

Calgary Lump Sum Spousal Support Contingencies Really Matter

Further, a proper calculation of Calgary lump sum spousal support should factor in positive and negative contingencies for risk of death, job loss, remarriage, disability, windfalls, payor salary increases and the like. Our Calgary family lawyers are often asked what are the rules for Calgary Lump Sum Spousal Support? A Calgary Lump Sum Spousal Support calculation is only as accurate as the incomes used to calculate it so be sure to factor in proper  incomes including potential increases and decrease in income of the recipient and paying spouse.

Don’t Make A Huge Calgary Lump Sum Spousal Support Mistake!

Our Calgary Lump Sum Spousal Support lawyers are intimately familiar with Calgary high net worth support issues involving the $150,000 exception for child support and the $350,000 cap for spousal support and we’ll explain these to you at our initial consultation.

We often warn our high net worth Calgary family law clients that additional discounts for risks should be made to the Divorcemate calculation program. Don’t make a huge mistake on your Calgary Lump Sum Spousal Support case. Call us now at our downtown Calgary office at 403-444-5503. Click here to book an appointment online to meet with us so we can plan a cogent and powerful Calgary lump sum spousal support strategy for you.

Calgary Lump Sum Spousal Support

A recent Calgary lump sum spousal support appeal decision of Kohan v Kohan, 2016 ABCA 125 sets out the rules a court will apply to ensure proper Calgary lump sum spousal support is calculated:

[40]           The appellant argues that the ultimate lump sum spousal support award of $500,000 is not explained in the reasons. The trial judge summarized the claim: [57]      I find that she has entitlement to spousal support. Using the Spousal Support Advisory Guidelines, Mom claims a lump sum for retroactive spousal support from the time of the separation until Nakita turns 18, which was February of 2014. The claim is in the amount of $884,956.67 based on the lower end of the range and over a million dollars based on the high end of the range. Again, blind adherence to tables is not required nor is it, in my view, desirable in a case such as this which is unique. The goal is to achieve fairness in dividing the economic consequences of the relationship and its demise.

The trial judge concluded “I award under this head the sum of $500,000”.

[41]           The issue here is not whether the spousal support should have been ordered payable as a “lump sum”. Section 15.2(1) of the Divorce Act confirms that spousal support can be awarded as a lump sum, although lump sum payments are the exception: Lauderdale v Lauderdale (1997), 1997 ABCA 201 (CanLII), 200 AR 198 at para. 5, 29 RFL (4th) 34 (CA). The term “lump sum” is however used in several different ways:

(a)   Sometimes the quantum of arrears of spousal or child support will be calculated, and the resulting sum will be payable immediately because it reflects arrears of support. In that context the phrase “lump sum” simply refers to the mathematical total of all of the periodic arrears.

(b)   A trial judge may find an entitlement to future periodic spousal support, but rather than ordering that it be paid periodically, the judge may order the present value of the future sums to be paid in a “lump sum”. That is sometimes to promote a “clean break”, to address past or future problems with enforcement, to allow for set-offs against other payments such as matrimonial property equalization payments, etc.: Rockall v Rockall, 2010 ABCA 278 (CanLII) at paras. 23-4, 35 Alta LR (5th) 1, 490 AR 135. The phrase “lump sum” is most accurately used to describe this type of support award.

(c)   On other occasions a trial judge may determine that there is an entitlement to past or future support, but rather than calculating the periodic entitlement the trial judge will just select a “lump sum” award. Because periodic payments are subject to different income tax treatment, this approach must always be used cautiously, especially when the Spousal Support Advisory Guidelines are used as a basis for the calculation:Samoilova v Mahnic, 2014 ABCA 65 (CanLII) at para. 28, 41 RFL (7th) 83.

Because all of the spousal support in this case related to prior time periods, the entire amount was “arrears” when the judgment was pronounced, meaning that the award potentially fell into the first category of “lump sum” support payments. The $500,000 spousal support award in this case properly falls, however, under the third category; the amount was simply set “at large”. The trial judge did not identify the quantum of the periodic support, nor the income levels supporting the underlying analysis, and simply pronounced the award. When this type of “lump sum” spousal support is ordered without an adequate explanation for the calculation, the adequacy of the reasons will be called into question: Rockall at paras. 26-8.

[42]           The trial judge did refer to a few of the issues that had been raised. He noted that the respondent’s financial records were inadequate, but concluded that she was not intentionally trying to withhold information. He did not deal in detail with the various specific inconsistencies identified by the appellant. He was prepared to accept the respondent’s explanations, and found that her reliance on her accountant was reasonable. In calculating child support he did attribute $40,000 per annum of income to her in 2009, 2010 and 2011. He presumably used those same income numbers when determining spousal support. [43]           The respondent argued that she had provided the appellant with all of the raw data about her finances, yet the appellant had done nothing with it. She criticized the appellant for not retaining a forensic accountant to analyse the information. The burden of proving the entitlement to spousal support was, however, on the respondent. The appellant had no obligation to retain a forensic accountant to prove her case for her, and since the respondent did not retain a forensic accountant the appellant had no need for rebuttal evidence. The trial judge’s statement that: “In any event, Dad had all of the production related to her financial situation” does not answer the point. The appellant identified a number of discrepancies in that information and was entitled to put them to the respondent at trial. [44]           As previously noted, the trial judge erred in including the appellant’s bonus income in the spousal support calculations, at least without making some significant adjustments. Further, it appears that the Spousal Support Advisory Guidelines range referred to ($884,956.67 to over $1 million) did not include the extra $40,000 of income attributed by the trial judge to the respondent for 2009, 2010 and 2011. In addition, the Spousal Support Advisory Guidelines calculations assume that the payments are to be periodic, and will be deductible by the payor and taxable in the hands of the payee. The lump sum payment ordered may not be taxable and deductible unless it could be qualified as a “Qualifying Retroactive Lump-Sum Payment”. The trial judge made no mention of these issues. [45]           The largest concern about the $500,000 lump sum payment is, however, that its source is completely unexplained on the record. While “fairness” is the conceptual objective of any adjudication, an award of spousal support must be tied back to the evidence and the criteria in the Divorce Act. The observation in Moge that a “minute detailed accounting” is not called for does not encourage pulling numbers out of the air. A payor spouse who is ordered to pay such a large sum in spousal support is entitled to know how it was calculated. It follows that the lump sum spousal support payment cannot be sustained.

[46]           This litigation has been ongoing for over a decade, and the parties have already been through one trial. There is no point in re-litigating some issues that have already been adequately canvassed. The broad entitlement to spousal support has been established, if not the precise years in which it would be payable. The finding that the respondent acted reasonably in her career choices should not be disturbed. In light of the appellant’s position at trial, his income in any year should be capped at $350,000. Considering all the factors in this case, including the lengthy period between separation and trial, and the fact that the bonuses were triggered by unprecedented market conditions, this outcome is fair and just to both sides.

[47]           The quantum of spousal support must be referred back to the trial court. The appellant’s and respondent’s income must be established for each year for which spousal support is payable. The amount of spousal support payable for each year should be established, having regard to the provisions of theDivorce Act. The parties are undoubtedly aware of dispute resolution options other than reopening the trial.

It pays to hire a Calgary family law lawyer who will help you get things right in the fastest possible time so you can save your financial resources and energy and focus on moving forward. Call us today 403-444-5503.

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Calgary Interim Spousal Support Lawyers 403-444-5503

Lorne N MacLean, QC, founder Calgary Interim Spousal Support Lawyers 403-444-5503

Calgary Interim Spousal Support Lawyers assist parties in obtaining an initial amount of spousal support that permits parties to meet their needs and obligations and maintain the marital standard of living if at all possible.Calgary Interim Spousal Support Lawyers know that running two households instead of one on the same salary or salaries earned by the spouses can present challenges for Calgary family law clients.

Our new Calgary family lawyer office is located in the West Tower of Banker’s Hall and we bring the strength of Western Canada’s largest family law firm to Calgary.

Calgary Interim Spousal Support Lawyers Rough and Ready Justice To Trial

At the start of an action getting our Calgary Interim Spousal Support Lawyers know the court will make orders based on “rough and ready justice”. Calgary Interim Spousal Support Lawyers know the court will act like a “financial paramedic” who puts urgently needed financial orders in place for the short term until a trial judge can get all of the evidence, hear financial experts, listen to the parties give evidence and be cross-examined and look at documents after full financial disclosure that allow a full and careful decision to be reached. Calgary Interim Spousal Support Lawyers know that these initial Calgary interim spousal support awards can be too high or too low because the court could not assess self sufficiency or the correct incomes of self employed persons on incomplete or disputed evidence or decide who was right on hotly contested issues of what each spouse really earned or what their real expenses were monthly.

Calgary Interim Spousal Support Lawyers

Pinter v. Pinter is a case our top MacLean Family Law Calgary Interim Spousal Support Lawyers recommend as a clear summary of what the intent and effect of a Calgary interim spousal support order.  Our Calgary Interim Spousal Support Lawyers emphasize these awards are interim only and can be corrected at the trial of the Calgary spousal support action. Here is what the Alberta Court of Appeal said in Pinter v Pinter with the key parts emphasized in bold:

Interim Spousal Support

[32]           Mr. Pinter’s final ground of appeal is that the chambers judge erred in granting interim spousal support when there was insufficient evidence to establish entitlement. The appellant cites various inconsistencies, contradictions, and gaps in the respondent’s evidence for this. [33]           A chambers judge’s decision to grant spousal support is entitled to deference: Hickey v Hickey, 1999 CanLII 691 (SCC), [1999] 2 SCR 518 at para 11. This was an interim order only and it was necessarily made on a less than perfect record: Peterson v Ardiel, 2007 ABCA 218 (CanLII) at para 11. The goal of an interim order is not to make a final determination on all of the evidence, but to provide a reasonably acceptable solution until trial: Sypher v Sypher (1986), 2 RFL (3d) 413 (Ont CA). The trial judge will fully review and remedy any errors with the interim order: Bell Canada v Canada (Canadian Radio-Television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 SCR 1722 at 1752. In other words, it is a band-aid, not surgery. We were told the matter of spousal support is headed to trial.

[34]           Although the evidence before the chambers judge was neither complete nor uncontested, there was sufficient evidence to make the order that she did, a determination that is entitled to deference. At trial, Mr. Pinter is at liberty to more fully expose the alleged flaws in Ms. McMillen’s evidence. In the meantime, as noted by Bielby J.A., “[t]he solution in cases like this is to complete disclosure and set the matter down for trial without delay, not to launch appeals from interlocutory orders”: Davies v Davies, 2015 ABCA 17 (CanLII) at para 6.

Our Calgary Interim Spousal Support Lawyers will help you get a proper amount of interim support in the Calgary Court of Queen’s Bench and thoroughly deal with the issue so it gets settled before trial or failing that, so it is fully and fairly dealt with at trial. Call us at 403-444-5503 today to meet with Lorne N. MacLean, QC or Aman Kahlon.

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Calgary Child Support Lawyers 403-444-5503

Calgary Child Support Lawyers help their clients obtain and maintain proper child support for the children of the relationship after the parties separate. Calgary Child Support Lawyers know there are occasions where inappropriate amounts of child support are paid that result in unfair overpayments and underpayments. Automatic annual disclosure clauses help Calgary Child Support Lawyers protect the children of the relationship’s financial security but being vigilant on post separtion income changes pays off for clients.

Calgary Family lawyer and founder of MacLean Law, Lorne N MacLean, QC

Calgary Child Support Lawyers at MacLean Law can be reached at 403-444-5033 at our new offices in the West Tower of Banker’s Hall.

Calgary Child Support Lawyers

What happens When A Parent’s  Income Changes?

Calgary Child Support Lawyers advise clients that prompt correction up or down of child support is the best approach. Applying for a retroactive correction means your child has not received the proper amount of support.

Many times the support is too low and a child has suffered. Sometimes there has been an overpayment due to financial reverses, layoffs or firings of a spouse.

When someone has overpaid, delay often works against them achieving justice and many times a worker who has been laid off is in shock and does not take action to correct the situation. Other times our Calgary Child Support Lawyers face cases where spouses have not honestly disclosed their new increased incomes.

Alberta Court Of Appeal Takes No Nonsense Approach On Proper Child Support

In the case of Pinter v Pinter a father complained the correct corrected child support instead of sending the parties to the Support Recalculation Program and also complained the judge made a retroactive child support order. The Court of Appeal rejected the Appeal applauded the judge’s actions and stated:

[19]           Turning to the first argument on appeal, it is trite law that children have a right to support from their parents that is commensurate with their parents’ income: DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37 (CanLII) at para 54, [2006] 2 SCR 231 [DBS]. That right, and a parent’s corresponding obligation, exists independently of any court order: DBS at para 68. The evidence before the chambers judge was that Mr. Pinter had not paid the amounts that he was obligated to pay for the support of his children, as determined by the Federal Child Support Guidelines. We find that, had evidence of Mr. Pinter’s actual income been available to Clackson J., the amounts directed to be paid for child support would have properly reflected Mr. Pinter’s actual income, and his commensurate child support obligation. Moreover, an increase in income is a material change in circumstance:DBS at para 66; Federal Child Support Guidelines, s 14(a). Courts are not bound by attempts to “contract out” of child support obligations. Both s 17(4) of the Divorce Act and s 14(a) of the Guidelines apply; there is no doubt that the judge was possessed of the jurisdiction to retroactively vary child support.

[20]           Although various factors of fairness are at play when a Court considers granting a retroactive child support award (see DBS at paras 94-116), Mr. Pinter did not suggest that Goss J.’s award of retroactive child support was either unfair, or incorrectly calculated.

[21]           A child’s entitlement to child support fluctuates with a parent’s income, which led Alberta through its legislators to create the Child Support Recalculation Program. The program was conceived as an efficient, accessible, inexpensive alternative to court proceedings for families with children requiring ongoing child support recalculations (Alberta, Legislative Assembly, Hansard, 27th Leg, 1st Sess, No 27e (28 May 2008) at 1049 (Robin Campbell)). The program annually recalculates a parent’s child support using the applicable guideline amounts from the parent’s most recent income information: Family Law Act, SA 2003, c F-4.5, s 55.11.

[22]           The program has limitations and it has been recognized that it is not a suitable non-court alternative for all parties: DPH v CAH, 2015 ABQB 699(CanLII) at paras 7-11; JT v TT, 2015 ABQB 648 (CanLII) at para 17; Gonek v Gonek, 2011 ABQB 166 (CanLII) at paras 29-30. It follows that a court’s jurisdiction to recalculate a child support order under s 17 of the Divorce Act cannot be ousted by the program. Simply put, the Court must do whatever the program cannot: see, for example Child Support Recalculation Program Regulation, Alta Reg 287/2009, s 16.

[25]           It would be very tempting for this Court to take up the invitation to ease the considerable daily burden cast upon the Court of Queen’s Bench in matters respecting child support, by simply decreeing that once there is an order or direction to enrol in the program, it will do no good to come before the Court of Queen’s Bench seeking relief concerning child support calculations.  Alas, the ability of alternative programs – such as the recalculation program – to permit total diversion of such matters away from Queen’s Bench to cheap and effective non-court entities, has not yet been perfected. That ongoing, very difficult task must be left to the Legislature. [26]           One of the limits of the recalculation program is that it cannot perform retroactive recalculations: DPH v CAH at para 9. Nor can the program award interim spousal support, or determine whether an expense is a proper s 7 expense, or whether post-secondary expenses are properly proportionately shared, all of which forms of relief were sought by Ms. McMillen in this case. [27]           In the absence of full settlement of these other non-child support issues, the court proceedings were inevitable, as was the attendant expense. Given the other matters at issue and before the Court, the expenses relating to the child support recalculations were already a sunk cost.

[28]           Further, had the chambers judge declined to recalculate child support, it would have been to the detriment of the children who are entitled to proper child support.

[29]           Far from criticizing the chambers judge, we commend her for being practical and diligent, and for furthering the best interests of the children by making decisions within her jurisdiction about the amount of their entitlements to child support.

[30]           That is not to say that there will not be cases where a judge should discourage family law litigants from avoiding cost-efficient means of dispute resolution, or where declining jurisdiction would be met with appellate approval. An easy example may be a situation where the only matter between the parties is the annual recalculation. To instead expect a Court to do those recalculations would not only needlessly waste the resources of the parties, but would squander the finite resources of the courts and deprive other deserving litigants of timely judicial resolutions of their important legal matters.

[31]           But, this is not that case. Mr. Pinter was ordered by the chambers judge to pay precisely what he is obliged to pay under the Federal Child Support Guidelines. In the circumstances of this case, we find no reversible error in the chambers judge having so ordered.

Calgary Child Support Lawyers Help You Achieve Fair Child Support

Calgary Child Support Lawyers can help you get child support right from the start and ensure your children are properly supported until they are independent productive members of society.

Calgary Child Support Lawyers 403-444-5503

If you need a one of the best Calgary Child Support Lawyers to assist you call us with confidence at 403-444-5503.

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Calgary Exempt Property Lawyers 403-444-5503

Calgary Exempt Property Lawyers explain to their clients that when you divorce in Calgary there are three key property division rules for divorcing parties. These rules do not apply to common law spouses in Alberta, although in BC common law spouses who have lived together for more than two years are treated the same as married persons. Our Alberta Matrimonial Property Act has 3 categories of property.

• Equally Shared Property
• Exempt Property
• Shareable property

Calgary Exempt Property Lawyers Lorne MacLean, QC 403-444-5503

MacLean Law’s Calgary Exempt Property Lawyers, tell our medium to high net worth clients, that Calgary equally shared property gets divided presumptively on an equal basis. However, our top Calgary Exempt Property Lawyers advise that certain types of property such as:

• Real or personal brought by one spouse into the marriage
• assets inherited by one spouse
• personal injury lawsuit awards
• gifts to one spouse from a third party and
• certain types of Insurance proceeds

are subject to special property division rules as is the gain made on these exempt assets.

These types of property are called Calgary exempt property and the gain on these assets is called shareable property. Calgary Exempt Property Lawyers at MacLean Law know these types of property don’t depend on a joint effort or contribution by the parties whether it be financial or through being a great homemaker and child caregiver. Rather this class of asset arose either before the relationship or came to a party during the marriage but from a source unconnected to joint family effort.

Calgary Exempt Property Lawyers Know Exempt Asset Must Still Exist

Calgary Exempt Property Lawyers educate their clients that it is crucial there be evidence that asset still exists or evidence where it can be proven to be traced into a new property that is not in joint names with the other party. Calgary Exempt Property Lawyers want you to know that the rules for Calgary exempt property operate so as to exclude from division the exempt property’s starting market value for assets owned by one spouse alone when the marriage started or when the asset was acquired in cases of gifts, inheritances, insurance proceeds and certain injury damage awards.

A recent Alberta Queen’s Bench decision of Grant v Grant, 2016 ABQB 198 (CanLII) went over the rules and what the impact was if any of fluctuations in the value of exmpt property and loans against this property during the marriage:

[74]           I will now deal with the Husband’s Home. This home was purchased by Mr. Grant before the marriage and has never been put into joint names. The present value of this house as established by appraisal is $348,000. This property is encumbered by a mortgage registered in 2010. The present value of which is approximately $256,230 leaving an approximate current equity of $91,770.  None of this is contentious. [75]           The parties disagree, however, as to the value of Mr. Grant’s exemption in this home. A historical search shows it was purchased on December 20, 1988 for $85,500, before the marriage. [76]           Ms. Grant has two arguments respecting Mr. Grant’s claimed exemption in the Husband’s Home. She first argues that having failed to lead evidence of the value of the home at the date of marriage, Mr. Grant has failed to prove the value of his exemption and thereby failed to prove his exemption. She argues that I cannot infer the value of the home at the date of marriage from any of the evidence that was tendered. [78]           I conclude based upon this evidence that the value of the Husband’s Home on the date of the marriage was $85,000.

[79]           Ms. Grant’s second argument is that Mr. Grant lost his exemption in the Husband’s Home when the balance of the HELOC mortgage exceeded the value of Mr. Grant’s exemption in the Husband’s Home. The HELOC funds were used to meet the couple’s everyday expenses, to pay off credit card debt and to purchase another rental home on the evidence. Ms. Grant says that drawing down these funds completely exhausted Mr. Grant’s exempt equity in the Husband’s Home. Ms. Grant says that because of this, the exempt funds cannot now be traced into the present value of the home, notwithstanding that there is now equity in that home that exceeds the amount for which it was purchased. Alternatively, Ms. Grant says, even if the exemption survived the drawing down of funds in the HELOC, when it was discharged in 2010 and a new mortgage was registered against the Husband’s Home to obtain funds to build the Matrimonial Home, any exemption that survived is traced into the Matrimonial Home. At most, Ms. Grant says $37,500 of the original equity in the Husband’s Home can be so traced. She says as well that the maximum value of Mr. Grant’s exemption has been reduced to $18,750 because the Matrimonial Home is in joint names.

[80]           Mr. Grant disagrees. He cites Carmichael v. Carmichael 2007 ABCA 3 (CanLII) as authority for the proposition that it is the market value of the property on the date it was acquired that is exempt from distribution. Thus, he says the value of the exemption is clear. It is the purchase price. Further, he says this case makes it clear that encumbrances against the home are of no relevance since it is the ‘market value’ of the home not the net equity that is exempt.

[81]           I agree. Section 7(2) of the Matrimonial Property Act provides that it is the “market value” at the date of acquisition of a property that is exempt from distribution. Section 7(3) then provides that it is the difference between the exempt value of the property and the “market value at the time of trial” that may be distributed.

[82]           But the original value of the exemption is only half the equation. The second issue is whether the exemption has been lost. Mr. Grant’s argument appeared to be that since it is the market value that is exempt, fluctuations in equity are irrelevant.

[83]           Ms. Grant’s argument is premised on the proposition that as equity is eroded, so too is the exemption. There is case law that appears to support her argument. Many cases deal with what happens to an exemption which is, or is invested in, an asset that depreciates in value over time.  Vehicles are a good example of this type of an asset. In these cases, the courts have found that the exemption decreases in value as does the asset so that if the asset becomes worthless, the exemption disappears. See for example Brokopp v. Brokopp (1996) 1996 ABCA 4 (CanLII), 181 A.R. 91, [1996] A.J. No. 77; Lovich v. Lovich, 2006 ABQB 736 (CanLII).

[84]           I conclude, however, that those cases are distinguishable from the situation here.

[85]           I begin my analysis with the wording of the Matrimonial Property Act itself. The relevant provision is s 7(3) which provides that it is the difference between the exempted value of the property and the market value of the property “at the time of trial” that may be distributed between the parties. As I have already said, the exempted value of a property is established by s 7(2) as the “market value of that property…on the date on which the property is acquired”. Thus, by the wording of the statute, the two relevant dates for determination of the value of an exemption are the date of acquisition and the date of trial.

[86]           The Act says nothing about fluctuations in the value of a property between those two dates, and it would appear therefore that such fluctuations are irrelevant.

[87]           If Ms. Grant is correct, then fluctuations of equity in an exempt property during the course of a marriage would affect an exemption. For example, if a party brought a home worth $100,000 into a marriage on year one, if at year 5 of the marriage, the market value of that home had decreased to $75,000 because of a falling real estate market, then even if the market value of the home increased to $150,000 by the time of a divorce in year 10 because of a rising market, the party’s exemption would still have been caught by the earlier downturn and be limited to $75,000. If that interpretation is correct, then parties would be forced to obtain historical valuations of exempt property if it was suspected that a property had decreased in value over the course of the marriage, thereby greatly increasing the complexity and the expense of matrimonial property trials. That cannot have been the intention of the Legislature. [88]           The numerous cases that conclude that when an exempt property is sold, if the proceeds are dissipated or otherwise cannot be traced into after acquired property, the exemption is lost, are also distinguishable. There is one crucial difference between those cases and the case at bar. Here, the Husband’s Home was never sold or otherwise alienated. Thus, there is no tracing issue.

[89]           As a consequence, in my view, Mr. Grant has maintained his exemption in the amount of $85,000 and the distributable value of the Husband’s Home is $263,000, less the mortgage balance at the date of trial.

The Alberta matrimonial Property Act rules can be confusing. Calgary Exempt Property Lawyers help you navigate your way to a successful property division outcome. Call us today at 403-444-5503 to get started on your new life. When you have a difficult Calgary exempt property division case it pays to hire a top Calgary family lawyer such as Lorne N. MacLean,QC and his team.

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Richmond Family Lawyers Tel 604-249-2149

Our Richmond family lawyers handle complex international family and excluded property cases involving worldwide assets. Our Richmond family lawyers also handle marriage and separation agreements that also involve division of international property. We have Richmond’s largest family law department that is fluent in Mandarin and Cantonese.

Richmond Family Lawyers fluent in Mandarin and Cantonese 604 249 2149

Richmond family lawyers at MacLean Family Law are fluent in Mandarin, Cantonese, Punjabi, Hindi, and Farsi. Our top rated Mandarin speaking Richmond family lawyers , deal with equal and unequal division of international family property, Richmond excluded property and the gains made on them. Dividing Richmond property unequally requires a strong reason both under our old act family Relations Act and our current Family Law Act. Richmond family lawyers explain that agreements made before March 2013 require proof of unfairness under the Family Relations Act to be set aside and now an even higher standard of “significant unfairness” is required to succeed. A court needs to look at the parties worldwide assets and not just one asset in a vacuum to see if unequal division is appropriate.

Richmond Family Lawyers

Top rated Richmond Family Lawyers

The recent case of Xie v. Yuan 2016 BCCA 238 provides guidance to Richmond family lawyers and their clients on the test for setting aside marriage agreements.

This case involved assets in both China and British Columbia. The court was as asked to deal with a trial case that set aside a written agreement based on unfairness. The court felt the judge made errors applying the test for setting aside the agreement for unfairness and disagreed regarding the comparative contributions made by the husband and the wife and ordered a new trial with guidance on what had been done wrong at the first trial. Here are the important parts of their decision:

[69]         I am also of the view that the judge’s s. 65 analysis was in any event

seriously flawed. Given that there must be a new trial on the issue of reapportionment, it is of some importance that those flaws are identified.

[70]         The FRA provides for a presumptive equal division of family assets upon the occurrence of a triggering event, such as a divorce (s. 56).

[71]         Section 61 of the FRA permits the parties to enter into a marriage agreement; in so doing, the parties may substitute a consensual regime for the statutory regime that would otherwise be imposed on them. As found by the judge in this case, the May 19 Agreement is a valid marriage agreement under s. 61 of the FRA.

[72]         Although the parties are entitled to enter into a marriage agreement, s. 65 of the FRA gives the court the power to reapportion the parties’ assets if the provisions for the division of property under the marriage agreement would be unfair, having regard to the factors enumerated in that section: Hartshorne at para. 35.

[73]         In determining whether a marriage agreement operates unfairly, the court must first apply the agreement. Where the parties’ current situation was contemplated at the time the agreement was made, and where the agreement and the circumstances surrounding it reflect consideration and response to this situation, the burden to establish unfairness is heavy: Hartshorne at para. 47.

[74]         In this case, the judge, in determining that the marriage agreement operated unfairly, limited his consideration to the Residence. This was a clear error. The May 19 Agreement was not limited to the Residence. With respect, the judge could not consider whether the May 19 Agreement operated unfairly in the absence of findings concerning the parties’ other assets. A court must look at an agreement in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin v. Miglin, 2003 SCC 24 at para. 84.

[75]         In the Counterclaim, the Husband pleaded that the parties’ properties should be distributed pursuant to the terms of the May 19 Agreement. However, if the May 19 Agreement was set aside, the Husband claimed, in the alternative, an interest in all of the family assets. In my view, it was an error in principle for the judge to reapportion the Residence without dealing with the parties’ other assets. He could not reapportion the Residence in a vacuum.

[76]         I would also find that the judge made a palpable and overriding error in failing to recognize the Husband’s contribution to the purchase of the Residence. The purchase was only possible because the Husband took out a $1 million loan secured by a mortgage. The Husband remains liable to pay that mortgage. By contributing his credit and assuming this liability, the Husband clearly contributed to the purchase of the Residence: Suen v. Suen, 2016 BCCA 107.

[77]         It is also arguable whether the Wife in fact made any contribution towards the purchase of the Residence. According to the allegations in the Civil Claim, the monies used for the deposit and down payment on the Residence came not from the Wife but by way of a loan to the Husband from the Wife’s father (who seeks to recover those monies from the Husband in the Civil Action). If the allegations in the Civil Action are accurate, the Wife’s contribution to the purchase of the Residence was minimal; this may in turn impact the question of whether the May 19 Agreement is fair and any possible reapportionment under s. 65 of the FRA.

[78]         A further factual issue that arises in regard to fairness is whether the Husband has, in fact, repaid the monies advanced to purchase the Residence, either to the Wife or the Wife’s father. The Husband alleges that he has. While there was some evidence at trial to support his position, the Wife denied any repayment. The judge did not make a specific factual finding in relation to that question. Such a finding is clearly necessary in weighing the fairness of the May 19 Agreement.

[79]         I would also note that a complete reapportionment in favour of one party is an infrequent remedy: Kaur v. Ram, 2006 BCCA 527. When a property has increased in value due to rises in the real estate market, which appears to be the case here, it would usually not be unfair for the parties to share equally in that increase: Pasch v. Blackmore, 2011 BCCA 420.

[80]         In the result, I would set aside the judge’s order in its entirety. In its place, I would substitute a declaration that the May 19 Agreement is a binding marriage agreement. Whether there should be a reapportionment under s. 65 of the FRAis a matter that remains to be determined. Determination of this issue and the claims in the Civil Action will have to be resolved in further proceedings in the Supreme Court. The trial judge is no longer seized of this matter. The parties should convene a trial management conference as soon as possible to determine how to go forward to resolve the outstanding issues.

MacLean Law Richmond Divorce and Separation Lawyers office

When you have a Richmond family property division case, or a case involving Richmond family property division and international assets located outside of BC it pays you to call the highly experienced Richmond family lawyers at MacLean Family Law. Call us at 604-249-2149

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Vancouver Marriage Like Relationship Lawyers 604-602-9000

Vancouver Marriage Like Relationship lawyers deal with when and if parties entered into a “common law” or “marriage like relationship and when and if it ended. Unlike a marriage, a Vancouver common law relationship called a Vancouver “marriage like relationship” doesn’t have an easily identifiable start date.  The best Vancouver Marriage Like Relationship lawyers can help protect you when hundreds of thousands and even millions of dollars can be at stake.

Lorne MacLean, QC and Audra Bayer senior Vancouver Marriage Like Relationship lawyers

Cohabitation Agreements Drafted By Top Vancouver Marriage Like Relationship Lawyers Can Save You Millions

Vancouver Marriage Like Relationship lawyers can also help you negotiate and draft cohabitation agreements in advance of liability to pay spousal support and property compensation. The cost of such a Vancouver cohabitation agreement is a faction of the cost of litigating it later when you break up.

Our Vancouver Marriage Like Relationship lawyers Will Explain Key New Rules To You

The Vancouver Marriage Like Relationship lawyers at MacLean Law also know a variety of factors have to be looked at to determine when or if a common law or marriage like relationship exists. People ask our Vancouver Marriage Like Relationship lawyers what their rights are to child support, spousal sup[port and property division. Our Vancouver Marriage Like Relationship lawyers explain that spousal support is now payable if a child is born of a marriage like relationship even if it is less than 2 years in duration. Since March 2013, common law spouses living in a marriage like relationship lasting longer than 2 years have the same property rights as married spouses. Finally, spousal support liability exists once the relationship lasts for over 2 years if no child has been born of the common law relationship.

Top rated Vancouver Marriage Like Relationship Lawyers

Strict deadlines to make claims apply to Vancouver common law marriage claims so meet with us immediately if you are separating. Click here to meet with us or call us at any of our 5 offices across BC in Vancouver, Surrey, Richmond, Kelowna and Fort St John, BC toll free 1-877-602-9900.

What Factors Do Our Vancouver Marriage Like Relationship Lawyers Look At To See If You are In A Common Law Relationship?

Our Vancouver Marriage Like Relationship lawyers focus on social, sexual and financial factors in support and property division disputes involving potential common law spouses in a marriage like relationship? Our highest court established new rules for determining this very important issue:

[34]         A recent decision of the Court of Appeal has set out the approach to be taken when deciding whether there has been a marriage-like relationship, beginning with the issue of the financial relationship between the parties (Weber v. Leclerc, 2015 BCCA 492): [21] With respect to the question of whether financial dependence or interdependence was a requirement of a marriage-like relationship, Frankel J.A., speaking for the Court [in Austin v. Goerz, 2007 BCCA 586], said:

[55] While financial dependence may at one time have been considered an essential aspect of a marital relationship this is no longer so. Today marriage is viewed as a partnership between equals and there is no principled reason why marital-equivalent relationships should be viewed differently.

[56] Mrs. Austin relies on Gostlin v. Kergin [(1986), 3 B.C.L.R. (2d) 264 (C.A.)] … and Takacs v. Gallo [(1998), 48 B.C.L.R. (3d) 265 (C.A.)] …. While the need to examine the financial relationship between the parties is discussed in both, in neither do I find support for the proposition that a marital-equivalent relationship cannot exist absent some level of financial dependence. [57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. F. 3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:

[59] Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

[Emphasis added by Frankel J.A.] [58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:

[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Emphasis added by Frankel J.A.] [22] Austin establishes that the question of whether a cohabiting couple are in a “marriage-like relationship” is a question of mixed fact and law that requires a broad approach: [62] The chambers judge properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”  She had regard to all aspects of their relationship, including that there was minimal sharing of expenses and no commingling of assets. Based on the evidence it was open to the chambers judge to reach the conclusion she did and there is no basis on which this Court can interfere: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 22. [23] The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24] The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[35]         The decision in Weber is also significant because it questioned the previous view in Gostlin that financial support was a fundamental aspect of a marriage-like relationship. In Weber the court said: [12] … it is difficult from this vantage point, some 30 years after Gostlin, to fully understand the reasoning expressed in the passage that I have quoted [from Gostlin]. It is based on the idea that marriage is a relationship characterized by economic dependence or interdependence. Perhaps marriage was, or was perceived to be, such a relationship at that time. Today, though economic dependence or interdependence exists in many marriages, it would be difficult to characterize such dependency as being an essential characteristic of marriage.

Vancouver Marriage Like Relationship Lawyers Will Assess Your Relationship

Skilled Vancouver Marriage Like Relationship lawyers know each case depends on its own particular facts. We’ll help you collect documentary evidence for and against a finding of a common law relationship as well as marshaling evidence for witnesses in support of your position. Our Vancouver Marriage Like Relationship lawyers will leave no stone un-turned to ensure your potential common law relationship is properly characterized and your rights protected.

Don’t Delay and Make A Huge Mistake

If you are worried you might be nearing deadlines for liability to pay support and property compensation or you’ve been separated more than a few days you must act quickly. Vancouver Marriage Like Relationship lawyers can only help if you meet with them. If you don’t you may regret it. Call us toll free across BC and from Calgary at 1-877-602-9900.

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Calgary Interim Spousal Support Lawyer 403-444-5503 

An experienced Calgary Interim Spousal Support Lawyer acts to protect clients rights and ensure proper interim spousal support is paid until a judge can deal fully with the competing arguments and positions of the parties. Our Calgary Interim Spousal Support Lawyer team knows that a full trial is where the judge can properly:

• assess the credibility of the parties after seeing each party and their witnesses testify and be cross examined,
• analyze each party’s financial records and historical spending,
• have the ability to assess the valuations of assets and even expert business valuation reports on each parties ability to earn incomes from employment, investments. companies, professional practices and ventures.
• come to a correct amount and duration for  Calgary spousal support.

Calgary Family lawyer Lorne N MacLean, QC heads our team of Calgary Interim spousal support lawyer team 403-444-5503

The best Calgary Interim Spousal Support Lawyer will also understand that parties need the issue of interim Calgary spousal support dealt with sooner rather than later to avoid unfairness even if this means an initial interim spousal support award isn’t perfect justice. Delay in seeing our skilled Calgary Interim Spousal Support Lawyer team often leads to unsatisfactory results.

Think of the special chambers hearing judge as something like a legal paramedic who looks at the parties means and needs and puts an order in place that allows the parties to survive financially until trial.

Top Calgary Interim Spousal Support Lawyer Advice

A senior Calgary Interim Spousal Support Lawyer knows that the longer the marriage and the greater the income disparity between both spouses, the greater the likelihood Calgary interim spousal support will be paid and in greater amounts.

Self sufficiency is something our Calgary Interim Spousal Support Lawyer group knows is scrutinized less closely than at a trial. Often expecting a spouse to immediately get a job is unrealsitic in the few months before trial.

Calgary Interim Spousal Support Lawyers direct our clients and those involved in an interim spousal support case to this years Alberta Court of Appeal decision in Anand v Anand, 2016 ABCA 23 (CanLII):

(b)      Law

[53]           Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, 99 DLR (4th) 456 sets out a framework for analyzing both entitlement to and quantum of spousal support. The general categories are commonly referred to as compensatory, non-compensatory and contractual. [54]           Shields v Shields, 2008 ABCA 213 (CanLII) at paras 18-21, 432 AR 266 provides a succinct review of the applicable analytical framework: [18] The statutory provisions found in the Divorce Act are the starting point in determining spousal support. It is useful to review them:

15.2 (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

 (a)  the length of time the spouses cohabited;

(b)  the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

  (5)   In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6)   An order made under subsection (1) or an interim order made under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[19] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 at para 77, the Supreme Court of Canada recognized the importance of the presiding judge’s discretion and the difficulty of setting down principles that would guide every case:

The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.

[20] In Moge, the court made three general observations: the distinction between “traditional” and “modern” marriages is not very useful; the support provisions of the Divorce Act are intended to deal with the economic consequences for both parties of the marriage on its breakdown; and what the Divorce Act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses. [21] The crucial issue is to find the right balance and then exercise discretion in making an award. As McLachlin J. (as she then was) said in Moge at para. 107:

. . . the judge’s task under . . . the statute is to make an order which provides compensation for marital contributions and sacrifices, which takes into account financial consequences of looking after children of the marriage, which relieves against need induced by the separation, and, to the extent it may be “practicable,” promotes the economic self-sufficiency of each spouse. Neither a “compensation model” nor a “self-sufficiency model” captures the full content of the section, though both may be relevant to the judge’s decision. The judge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable, of promoting economic self-sufficiency.

[55]           As noted in Moge at 870, the longer a marriage endures the greater the presumptive claim to equal standards of living upon its dissolution.

[56]           Interim spousal support orders are often treated differently than spousal support awarded after trial, in that evidence concerning family assets and economic consequences of the marriage breakdown may not be fully developed, so greater significance is placed on the parties’ means and needs, while the other factors in s 15.2(4) and the objectives in s 15.2(6) are to be taken into account as far as is practicable: Bennett v Bennett, 2005 ABQB 984 (CanLII) at para 34, 57 Alta LR (4th) 380 [Bennett]; Loesch v Walji, 2008 BCCA 214 (CanLII) at paras 17-20, 52 RFL (6th) 33.

[57]           Although other s 15.2(4) factors and s 15.2(6) objectives must be taken into account, the needs of the dependent spouse and the ability of the payor spouse to pay take on greater significance in interim applications. The ultimate question for the court on an interim application is to determine what is reasonable on a temporary basis pending trial: BDC v MCM, 2014 ONSC 6064 (CanLII) at para 14, [2014] OJ No 4940 (QL). This Court has recognized that interim orders are often made on an incomplete record and chambers judges do the best they can to set an interim balance between the parties until the matter can go to trial: MacMinn v MacMinn (1995), 1995 CanLII 6247 (AB CA), 174 AR 261 at para 10, 17 RFL (4th) 88 (CA); Peterson v Ardiel, 2007 ABCA 218 (CanLII) at para 11, 39 RFL (6th) 41.

[58]           The purpose of the interim order under appeal was to put an imperfect solution in place pending a full trial of all matters in issue between the parties, including matrimonial property, exemptions, legal custody, residential care of the infant children, and so forth.

[59]           The appeal record discloses that the special chambers judge considered the circumstances of the parties including the “condition” of the parties, defined as the age, health, needs, obligations, dependents and station in life: Bennett at para 27. He also considered the “means” of the parties which includes “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”: Strang v Strang, 1992 CanLII 55 (SCC), [1992] 2 SCR 112 at 119, 92 DLR (4th) 762, affirmed in Leskun v Leskun, 2006 SCC 25 (CanLII) at para 29, [2006] 1 SCR 920. The special chambers judge considered the income earning capacity of each party, their incomes from investments, and their net worth generally: Bennett at para 28. [60]           We do not agree that the special chambers judge considered matrimonial property in his “means” analysis; indeed, he expressly stated that “other issues, such as matrimonial property, have not been dealt with”: AR transcript at 310/41-311/1. Precisely for this reason, the interim spousal support order must be reviewed in the context of a trial determining all other extant issues.

[61]           When considering “needs” the court must consider need relative to the station in life the parties have achieved before collapse of the marriage: Riad v Riad, 2002 ABCA 254 (CanLII) at para 33, 317 AR 201 [Riad]. Through this prism, where there is an ability to pay, the court must determine a reasonable standard of living: Bennett at paras 30-31.

[62]           Having reviewed the record and the findings of the viva voce special chambers judge, we discern no error in principle or significant misapprehension of the evidence, nor is the award of interim spousal support clearly wrong. In particular, the factor mentioned by the viva voce special chambers judge relating to the need for the mother to have adequate means to promote better access to the children – she currently rents one room and cannot adequately accommodate the children – was not clearly wrong, given that parenting will be dealt with once a bilateral assessment is completed. [63]           We are not entitled to intervene simply because we may have made a different decision or balanced the factors differently, or set a different quantum of spousal support on an interim basis pending trial. Given the matrimonial home and the retained earnings in the professional corporation, we see no imminent danger that even if we were to accept the appellant’s argument that present spousal support is on the generous side (although only 3.2% of the appellant’s reported income), any future adjustment cannot be made in the context of matrimonial property division. [64]           Accordingly, the appeal is dismissed on all grounds. [65]           We think it appropriate to add a few additional comments, however, and will deal with costs, as spoken to at the conclusion of the appeal. [66]           Interim spousal support orders have inherent frailties; the evidentiary record is inevitably incomplete. Here, the viva voce special chambers judge had no ability to consider the interplay between spousal support and the division of matrimonial property, which future division may allow the respondent to generate income from assets. [67]           This Court has repeatedly urged that parties not waste finite time and money appealing interim orders – time and money better spent achieving an equitable settlement, or getting a final determination at trial of all matters in issue: Hartley v Del Pero, 2010 ABCA 182 (CanLII) at para 27, 487 AR 248; Zaboschuk v Zaboschuk, 2012 ABCA 172 (CanLII) at para 5, [2012] AJ No 575 (QL); Davies v Davies, 2015 ABCA 17 (CanLII) at para 6, [2015] AJ No 35 (QL); FJN at para 6.

When you face a high stakes interim spousal support case you need a skilled and savvy Calgary Interim spousal support lawyer such as Lorne N. MacLean,, QC. Call us now at 403-444-5503.

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Vancouver Calgary Custody Appeal Lawyers

The Vancouver Calgary Custody Appeal Lawyers of MacLean Family Law handle appeals to the BC Court of Appeal, Alberta Court of Appeal and the Supreme Court of Canada. Call us across BC and from Calgary toll free at 1-877-602-9900 if you have a Calgary or Vancouver family law appeal.

Top rated Vancouver Marriage Like Relationship Lawyers

Our top rated Vancouver Calgary Custody Appeal Lawyers are led by Lorne N. MacLean, QC,  the winning counsel for Ms. Young in Canada’s precedent setting “maximum contact of the child with both parents”case of Young v Young. 

Vancouver Calgary Custody Appeal Lawyers explain to potential parties to an appeal, that the test to win an appeal of a child custody decision made in Alberta or BC is a stringent one. Roughly 25% of Vancouver and Calgary Custody Appeals are successful meaning 75% fail. Appeals prolong the uncertainty for ex-spouses and their children and can be expensive. Measured against these factors must be preventing the prejudice to the best interests of the children that can occur in a wrongly decided child parenting time and custody decision.

Vancouver Calgary Custody Appeal Lawyers

Vancouver Calgary Custody Appeal Lawyers provide prospective appellants the following cogent statement of the law to be applied in a Vancouver Calgary Custody Appeal  from the recent BC Supreme Court decision of B.H. v. R.S. :

Standard of Review on Appeal

[8]            The Supreme Court of Canada has made it clear that on appellate review of trial decisions that involve the care and well-being of children the decisions of trial judges are given considerable deference. That deference means that a trial judge’s decision should only be interfered with if there is a material error, a serious misapprehension of the evidence, or an error of law. (Van de Perre v. Edwards, 2001 SCC 60; Hickey v. Hickey, [1999] 2 S.C.R. 518).

[9]            As noted in Hickey at para. 10: [10]      … Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.

[10]        More particularly, when addressing the interests of children the British Columbia Court of Appeal in K.M.W. v. L.J.W., 2010 BCCA 572, in reference to Van de Perre stated at para. 51:

[51]      On appeal, the children’s interests must remain the focal point of the hearing. The fairness and efficacy of the trial process must be reviewed with that same focus, less bounded by strict procedural rules than in another type of civil appeal, and mindful of the narrow scope of appellate review of custody decisions set down in Van de Perre v. Edwards, …

[11]        The rationale for this narrowed basis for appellate intervention is it “promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge” (Hickey at para. 12) as “[t]he Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge.” (Van de Perre at para. 12; also see Kanwar v. Kanwar, 2010 BCCA 407 at para. 18.)

[12]        In addition, in Rick v. Brandsema, 2009 SCC 10, the Supreme Court of Canada said this about findings of fact in family matters: [30]      It is inherent in disputes generally, and matrimonial conflicts in particular, that parties have inconsistent versions of the underlying events. It is the trial judge’s job as judicial historian to sift through the record, watch and listen to the parties, and determine which version of disputed events is the most reliable. Findings of fact and factual inferences made at trial, as a result, are not to be reversed unless there is “palpable and overriding error”, or a fundamental mischaracterization or misappreciation of the evidence (Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802, at p. 808; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-18; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 52-76). [13]        More recently in Fotsch v. Begin, 2015 BCCA 403, the British Columbia Court of Appeal stated:

[66]      It is well established that an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a demonstrated material error of law or fact, a serious misapprehension of the evidence, or a decision that is “clearly wrong”. See Van De Perre v. Edwards, 2001 SCC 60 at paras. 14-15; Falvai v. Falvai, 2008 BCCA 503at para. 18; and R.E.Q. v. G.J.K., 2012 BCCA 146 at para. 33. On appeal, “matters must be reviewed as they stood at the time of trial” (Scott at para. 25) or there would be no finality to the litigation. An appellate court is not a court of second instance.

[67]      The parameters of this Court’s jurisdiction to interfere with an order in a family matter was helpfully summarized by Madam Justice Newbury in R.E.Q. v. G.J.K. at para. 33:

The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error (including a “significant misapprehension of the evidence”, the trial judge’s having “gone wrong in principle or [his] final award [being] … clearly wrong”): see Moge v. Moge[1992] 3 S.C.R. 813, at 832; and R.M.S. v. F.P.C.S. 2011 BCCA 53 at para. 43, citing Hickey v. Hickey[1999] 2 S.C.R. 518 at para. 12 and Van de Perre v. Edwards 2001 SCC 60 at paras. 14-5. In the latter case the Court wrote:

… Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [At para. 13].

Thus the authorities make it clear that it is not for an appellate court to re-weigh the evidence or to interfere on the basis that the appellate court would give more weight than the trial judge did to one factor or another — or, in the words of the Court in Hickey, that it would have “balanced the factors differently.”

[Emphasis added.]

See also Falvai at para. 18.

[68]      In short, appellate courts must treat a trial judge’s findings of fact with deference. Those findings and the drawing of evidentiary conclusions from the findings of fact “is the province of the trial judge, not the Court of Appeal.” See Housen v. Nikolaisen, 2002 SCC 33 at para. 24. In a strongly worded introduction, Justices Iacobucci and Major in Housen jointly reiterated this limitation in the appellate review jurisdiction: [1]        A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion.… [3]        The role of the appellate court was aptly defined in Underwood v. Ocean City Realty Ltd.(1987), 12 B.C.L.R. (2d) 199 (C.A.), at p. 204, where it was stated:

The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

[Emphasis added.]

Vancouver Calgary Custody Appeal Lawyers Can Guide You

Vancouver Calgary Custody Appeal Lawyers founder Lorne N. MacLean, QC

Our Vancouver Calgary Custody Appeal Lawyers know that child custody and parenting time disputes are emotional and sometimes a judgment feels like it isn’t right. We’ll provide an objective analysis of whether an appeal is justified and if it is we’ll put together a proper appeal argument to increase the chances of a successful child custody, parenting time, relocation or guardianship appeal.

You have only a few days within which to file your appeal so do not delay call us now toll free at 1-877-602-9900 to meet with one of our experienced family lawyers. 

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Vancouver Oral Marriage Agreement Lawyer 604-602-9000

A Top Vancouver Oral Marriage Agreement Lawyer knows parties can enter into marriage agreements that depart from the normal family property division regime in BC.  People who plan ahead for how property should be divided in the event they break up, are smart enough to hire a Top Vancouver Marriage Agreement Lawyer before they marry or live together.

Home made agreements either oral (the hardest to enforce) or handwritten and signed but not witnessed (still bad but slightly better!) end up requiring a Vancouver Oral Marriage Agreement Lawyer to defend, decipher, enforce or tear apart. We recommend you pay a modest fee to a top Vancouver Marriage Agreement Lawyer to do a properly prepared, negotiated, and signed agreement made after full disclosure and at a time when there is no undue pressure on either spouse.

Meet with our top rated Vancouver family law firm today!

A recent BC Supreme Court dispute over a Vancouver oral marriage agreement provides a cautionary tale on what happens to parties who enter into oral agreements before marriage. It provides a lesson for parties who procrastinate and don’t reduce marriage agreements to writing who later can’t agree on if there was a deal or not when their relationship ended. Fortunately for the wife, the Judge upheld the Vancouver Oral Marriage Agreement but no doubt the husband was far less pleased with the result.  In Brown v. Brown 2016 BCSC 1037  the court disbelieved the husband and completely believed the wife’s version of events on the Vancouver oral marriage agreement. As a result signifiant assets and the gain on them was excluded entirely from sharing while certain debts were shared equally.

Top rated Vancouver Oral Marriage Agreement Lawyers

Wedding season is now upon us. Don’t you and your spouse want to ensure your marriage is built on a sound financial plan in the event things don’t work out?

If you want to avoid the legal costs of an expensive trial to see if your version of the oral agreement or the other side’s is correct  you should meet with us today and get a properly prepared written one at a fraction of the cost of a trial emotionally and financially.

Vancouver Oral Marriage Agreement Upheld

Ms. Brown told Dr. Brown that she did not want the Ross Street property to be regarded as family property. Dr. Brown had the monies from the settlement with his first wife and RRSP money that she agreed not to claim as family assets. In response, Dr. Brown said that he trusted her completely not to claim his RRSP monies and that he did not wish to make any claim to her property on Ross Street. As a result of this discussion, Ms. Brown testified that Dr. Brown agreed that they would each retain their own assets when they married and would keep their finances separate. They would each pay their own credit card debts and their own automobile expenses. They would have no shared bank accounts and all of their household expenses would be shared equally.

[34]        Based on my assessment of the evidence, I find Ms. Brown’s version of the events regarding the oral agreement far more probable than Dr. Brown’s denial of any pre-marital arrangement. I thus accept her evidence entirely on this issue.

[67]        First, s. 92 permits the parties to make agreements regarding property and the Court must divide property and debts in accordance with such an agreement unless it is set aside under s. 93. In this regard, s. 94(2) provides: “The Supreme Court may not make an order respecting the division of property and family debt that is the subject of an agreement described in section 93 (1) … unless all or part of the agreement is set aside under that section.” Although s. 92 is not expressly limited to written agreements, only written agreements may be set aside under s. 93(1) of the Act. In P.N.K. v. C.L., 2013 BCSC 1856, Punnett J. recognized that oral agreements are contemplated by s. 92 of the Act: at para. 86.

[78]        Although the parties did not specifically refer to what would happen if their respective assets increased in value during the marriage, I find their agreement not to regard these assets as family property implicitly meant they intended the entire value of the asset to be excluded property. Their agreement was consistent with the definition of family asset in s. 58 of the FRA, which focused on the use of the property for a family purpose, and s. 84(2) of the Act, which renders an agreement that pre-marital assets remain separate property redundant if the increase in value over time is not regarded as a term of the agreement.

[79]        I find the parties’ agreement regarding these specific assets, although an oral agreement, is certain and enforceable. Ms. Brown did not expressly plead an oral agreement regarding the division of assets; however, Dr. Brown was made aware of this claim in January 2016, months before the trial in late April 2016. His examination for discovery was postponed to enable Dr. Brown to prepare for questions about this agreement. Further, both parties claimed a reapportionment in their favour under s. 95 of the Act, which expressly refers to agreements between the parties. As a consequence, I find it is just and convenient that Ms. Brown’s notice of claim be amended to reflect the evidence at trial pursuant to Rule 8-1(8).

….Pursuant to s. 95(2)(b), an agreement between the parties that does not qualify as an agreement under s. 93(1), but which purports to establish a contrary division of family assets and debts, is a factor within the s. 95 division regime.

[80]        Whether the Court applies s. 92 or s. 95(2)(b) to enforce the parties’ agreement regarding these assets, the result is the same. Neither party is entitled to claim a share in these assets due to the existence of their agreement that they are excluded property and because to grant an interest in these assets to the other party would create significant unfairness due to their pre-marital agreement. Under s. 95 of the Act, there is also the factor of a very short marriage and the expectations of the parties as demonstrated by their conduct during the marriage that favours a reapportionment of 100% of these assets consistent with their agreement.

Avoid A Vancouver Oral Marriage Agreement If You Want To Avoid A Huge Dispute When You Breakup

Vancouver oral marriage agreement lawyer Lorne N. MacLean, QC

Please call our top Vancouver Marriage Agreement Lawyers before you enter into a new marriage or marriage like relationship so you can get a properly and fairly negotiated marriage agreement that will hold up if you separate.

It pays to plan during the good time for how you want things fairly divided if the relationship is one of the 50% that go sideways.

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