Lorne MacLean, Q.C. manages our wealth preservation family law department in Vancouver, South Surrey and White Rock. MacLean Law is proud to have been named Vancouver’s top family law firm by Top Choice Awards.

Our top rated South Surrey high net worth family law and major estate litigation lawyers see real dangers for separating and remarrying spouses under the British Columbia’s new Wills, Estates and Succession Act and the new BC Family law Act.

Lorne MacLean, Q.C. South Surrey high net worth family law and wills dispute lawyer

You need to speak with one of our experienced South Surrey wealth protection family and estate litigation lawyers. We handle South Surrey Family Law and White Rock WESA Estate Disputes from our law offices at 15240 56th Avenue across from Brown’s Social House. Call Lorne at 604 576 5400 to meet with him in South Surrey or downtown Vancouver.

South Surrey Family Law Remarriage Nightmare

Our new BC Wills and Estates Succession Act known by the acronym “WESA” abolishes the old rule that remarriage revokes a prior Will and mandates that an old Will remains in force (except for gifts to former spouses). This leads to the nightmarish prospect of a new spouse (who is not even in the old Will) having to sue their deceased spouse’s estate to be treated fairly in they forgot to do a new Will!

South Surrey Family Law Separation Shock

Under BC’s WESA, a separation deletes gifts to a spouse in a Will, whether the couple later reconciles. Forgetting to do a new Will after litigation can lead to emotion laden litigation. It’s bad enough to lose a spouse but having to sue their estate after you lived for years in marital bliss after reconciliation is even worse.

Also under the BC WESA, a court order or separation agreement is no longer required to evidence a separation of married spouses. Separation will be a question of fact, taking into account the length of separation (two years or more), intention of the parties and the new single triggering event under the BC Family Law Act of separation. There is some confusion from the WESA wording as to whether 2 years separation is really required or whether the separation date itself is sufficient to cause an immediate revocation of any gift to a spouse in a will:

WESA Subsection 2(2) provides that two persons cease being spouses in the case of marriage:

1. when they live separate and apart for at least two years and one or both have the intention formed before or during separation to live separate and apart permanently; or
2. an event occurs that causes an interest in family property under the Family Law Act, S.B.C. 2011, c. 25, to arise.

White Rock Common Law Relationship Catastrophe

Both our BC Family Law Act and BC’s WESA treat married and common law partners as legal spouses after two years of cohabitation. If you are together in a common law marriage for over two years you can bring a claim to vary and unfair will but if you separate you cannot. In cases where a spouse dies after separation and before a spouse sues under the Family Law Act for property division and support all their rights for redress under either statute may well be extinguished.

It is unknown at this time whether the courts will simply adopt the past Family Relations Act case law that blocked any action being started after a spouse has died. There are differences between the old law and the new BC Family Law Act that suggest that an argument could at least be made that an action may be maintained against the estate of a deceased spouse.

Contact Our South Surrey Family Law and White Rock WESA Estate Dispute Lawyers Immediately

These pitfalls could happen to any South Surrey or White Rock family law or estate dispute client if they don’t speak with a lawyer immediately upon separation or if they are or have already entered into a new relationship married or common law relationship. The stakes are simply too high to ignore.

The post South Surrey Family Law and White Rock WESA Estate Dispute appeared first on MacLean Family Law.

MacLean Law was just selected as Vancouver’s top family law firm by Top Choice Awards. We have 4 offices across BC and are in a period of robust growth due to our client focused approach which empowers our clients to move forward successfully.

We seek a 6-9 year call, Punjabi speaking, family law and estate litigation lawyer with an established clientele to join us at our state of the art Surrey office. We are proud to assist our medium to high net worth Punjabi speaking clients at our office on the corner of 152nd and 56th avenue in South Surrey BC.

This is an exciting career opportunity to step into a growing practice and become a leading family law lawyer and estate litigation litigator. Offering top of market compensation, this is a rare opportunity to pursue an estate litigation practice in an environment that offers exceptional firm resources and staff support. A skilled litigator and negotiator who has experience in complex family law project management is required. Forward your resume to ccook@macleanlaw.ca.

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Lorne MacLean, Q.C. was one of the first Vancouver family lawyers to champion shared child custody and shared child parenting as being in the best interests of a child.

MacLean often tells Vancouver family courts “children don’t forfeit the love and guidance of two loving and concerned parents merely because of marriage breakdown.”

Lorne MacLean, Q.C. Vancouver Shared Custody and Child Parenting Lawyer

In the past, it was felt that unless two parents could easily cooperate with each other,  joint custody and equal parenting time could be a prescription for disaster. MacLean has argued successfully that if two parents could easily cooperate they likely would not have separated. He also argued successfully that courts had to take actions that encouraged future parental cooperation even if there were transitional disputes when parties first separated and there was an expected but perhaps ill-founded lack of trust.

The recent case of G.G. v. M.A., dealt with a high conflict case where a court appointed psychologist recommended equal parenting time but not equal decision making powers over the children. The judge considered past precedents where high conflict custody situations still allowed a court to make joint custody orders and ordered shared parenting but not equal decision making authority in regard to the children. The judge distinguished a past case that had denied joint parenting due to high conflict AND one parent’s poor parenting skills and found the parties could share parenting despite conflict because:

[80]         The respondent says that this case has similarities to J.S. v. G.J.S., where the court granted sole custody to the mother rather than joint custody and more equal parenting time as sought by the father. Prior to trial, the mother had sole custody and the father had limited access. The court found that the father was emotionally unstable and prone to outbursts, particularly at exchanges, which could emotionally harm the children who were similar in age to P. and M. At para. 48, Rice J. set out the reasons for his conclusion on custody:

Although an order for joint custody may be made in situations where the parents have difficulty communicating with one another (see P.Y.Y.M. v. D.M., 2003 BCSC 766, [2003] B.C.J. No. 1149, and Carr v. Carr, 2001 BCCA 415, [2001] B.C.J. No. 1219), I do not believe that such an order would be in the best interests of the children in this case. The parties have been consistently unable to prevent the tension, confusion and strife over access exchanges. The result has been trauma to the children. [J.S.] and [G.J.S.] cannot communicate with one another without rancour and have been unable to implement shared parenting or agree on an access schedule without frequent recourse to the courts. Consequently, I see little prospect for the co-operation, consultation, and joint decision-making that is necessary to make joint custody workable. In light of this animosity, a joint custody order likely would increase opportunities for conflict, exposing the children to greater stress.

[81]         The decision in J.S. v. G.J.S. is of little assistance here. The circumstances are very different. The claimant has not shown the same kind of harmful behaviour as the father in that case. Further, in the present situation both parties have been actively involved in caring for and making parenting decisions for the children for some time now. They both make positive contributions to the children’s lives. It is much more difficult in these circumstances to make a sole custody order than it was in J.S. v. G.J.S., where the court’s order effectively maintained the status quo.

[82]         My decision with regard to custody, guardianship and parenting time is based on the factors set out in s. 37(2) of the FLA. As well, I have considered the factors listed at para. 27 in Ordonez v. Ordonez, 2006 BCSC 1130, which are relevant to a consideration as to whether sole custody should be ordered. Some of the most important considerations here are:

• Children’s emotional health and well-being. The most difficult parenting task facing the parties is the upbringing of P. I accept Dr. England’s view that the claimant is more sensitive and attentive to his needs. It would be contrary to his best interests to grant sole custody and primary residency to the respondent. Similarly, the claimant is more adept at hands-on parenting. She has done so for much longer than the respondent. It would be harmful to the interests of both children to limit her time and parental decision-making authority in the manner suggested by the respondent.
• Nature and strength of relationship with both parents. This factor is also very important here. The children have a strong attachment to both parents. The order should, to the extent possible, provide the opportunity for maximum contact with each parent to continue.
• History of care and the need for stability. The children are still relatively young. Their mother was their primary caregiver until recently. They are at a stage of their development where stability is very important, particularly given the level of stress the family has experienced. It would be contrary to their interests to change the current parenting regime significantly at this time.
• Ability of the parents to communicate. The lack of communication is the one factor which most strongly supports having a sole custody order and limiting the parenting time and decision-making authority of one of the parents. The difficulty here is that neither party would be a good choice as the sole custodial parent. The respondent blames the claimant for the poor level of communication and she deserves a good share of the blame. But he is also responsible for the poor relationship and their inability to communicate. He does not respond promptly at times to requests for information. Like the claimant, he is inflexible and believes he is justified in his actions. He has attempted to control and manipulate the claimant through his superior financial position. He provoked her defensive responses. Given my view that the children’s best interests are served by equal involvement by both parents, and my conclusion that neither party communicates effectively with the other, I reject the respondent’s submission that he should have sole custody and the claimant should have limited parenting time.
• Parental behaviours which could impair the relationship between the children and the other parent. As I have indicated, this is a factor which weighs against the claimant. She has brought the children into the dispute with the respondent. As Dr. England noted, she does not maintain appropriate adult boundaries. While this is a significant concern, it is not enough to offset the other considerations set out above.

[83]         I have concerns about whether or not joint parenting can work. However, I think it is a better option than allowing either party to have primary custody, given their difficult personalities. In the future it may be necessary to consider alternatives but at this stage, I think it better to follow the recommendations of Dr. England and try joint parenting. I note that with the adjudication of the other issues completed, the parties will be in a better position to work together to put their conflict aside and focus on the best interests of the children moving forward.

[84]         In conclusion, the children’s best interests will be served by having each parent spend an equal amount of parenting time with them. They both have strong relationships with the children. The parenting plan should allow those relationships to continue to develop.

[85]         In order to reduce the degree of friction on parenting issues, I will give one parent the authority to make decisions about particular issues where the parties cannot agree. I stress that the parties have an obligation to present issues for discussion and resolution and an obligation to attempt to meaningfully mediate issues before a final decision is made.

Lorne MacLean, Q.C. Vancouver Shared Custody and Child Parenting Lawyer is pleased to meet with you to discuss your child custody and parenting plan issue. Call him at 604-602-9000.

The post Vancouver Shared Custody and Child Parenting Lawyer appeared first on MacLean Family Law.

Lorne MacLean, Q.C. Vancouver high net worth family mediation lawyer

Highly respected Vancouver family lawyer, Lorne MacLean, Q.C. leads our complex and high net worth Vancouver BC family law mediation department. Vancouver Family High Net Worth Mediation has several benefits for our Vancouver family law clients.  The Vancouver family mediation process provides discretion, flexibility and a fair process where parties can participate and feel fully heard.

Vancouver Family Mediation Settlements

Happily 95 % of Vancouver family law disputes are settled outside of BC family courts. This fact allows Vancouver family dispute clients to control the outcome of their family case through negotiation. Having a highly respected tenacious and focused courtroom litigator like Lorne MacLean, Q.C. on your side helps bring your spouse to the bargaining table.

BC Family Law Act Focuses On Out Of Court Settlements And family Mediation

Our BC Family Law Act, which deals with parenting issues, support and property division, has placed a new emphasis on alternative dispute resolution including family law mediation, family law arbitration and more recently “Med Arb” (you mediate the first day and try to reach settlement but if that fails the parties argue their case the next day and the family arbitrator makes a binding decision) Our Vancouver family mediation and arbitration lawyers will skillfully help you reach a fair settlement or arbitrated award.

Vancouver family law mediation clients need to understand the mediation process is basically a negotiation with spouses and their lawyers that is facilitated by the family mediator. We prepare our client for the mediation and provide relevant documents and a written mediation brief setting out our client’s position and why it is a win win for both parties.

Top Vancouver High Net Worth Family Law Mediation Tips

It is critical:

1. The client understands the mediation procedure before they get to the mediation.
2. The client understands the mediator is not a judge and that they are there to help the parties participate fully in a successful negotiation process.
3. While the parties will advocate their positions, often a creative compromise can arise from each side putting forth their best cases scenarios.
4. The parties feel they have been heard with a focus less on past injustices or slights each has done to the other and more on child focused solutions and fair financial outcomes.
5. A list of initial demands/goals be prepared with a prioritization list being made.
6. A strategy for compromise and alternatives should also be made.
7. A feel for the other spouse’s reason for wantinmg to settle and their priorities is key to help the Vancouver family law mediation client bargain from a position of strength.
8. You know what the other side has to offer to ensure the mediation has an upside for the Vancouver family law client.
9. A family violence screen be conducted by the lawyers and the family law mediator to ensure mediation can work without someone being too afraid to obtain a fair bargain.

At MacLean Law we will set you up to succeed at your family law mediation so you can move forward with your successful post separation life. We have 3 skilled senior family law mediators and arbitrators and a team of Vancouver family mediation lawyers led by Lorne MacLean, Q.C. who will help you obtain a successful mediated result in your Vancouver family mediation.

The post Family Mediation For Vancouver High Net Worth Divorce appeared first on MacLean Family Law.

Nick Davies of our Vancouver office is a senior mediator, arbitrator and family lawyer at Vancouver’s top rated family law firm.

Nicholas Davies, family mediator, arbitrator and lawyer

Vancouver Child Support and BC Shared Parenting

The issue often arises as to how child support is calculated when both parents are responsible for parenting children.  In some cases a parent will attempt to negotiate for at least 40% of the parenting time in order to avoid paying child support,  when in fact the proposed arrangement is not in the best interests of the children.   In other cases a parent will attempt to ensure that child support is paid by forcing the other parent to accept less than 40% of the parenting time when equal parenting time would be in the best interests of the children.  Worse, the law is not clear on how the 40% is calculated. Parents locked in this battle often assume incorrectly that the 40% threshold is a magic line in the sand.

Vancouver Split Custody Means Child Support Set Off

Section 8 of the Child Support Guidelines deals with “split custody”. Split custody means one child lives with one parent while one child lives with the other parent. In split custody situations, Section 8 requires the parties to calculate what each parent would pay to the other parent and then offset the two amounts to arrive at a net payment.

Vancouver Shared Custody Is Not Automatic Child Support Set Off

Section 9 of the Guidelines deals with “shared custody” situations. Shared custody means the children are with each parent for part of the time. Section 9 says that where a parent exercises “a right of access to, or … physical custody of a child for not less than 40 percent of the time over the course of a year …” child support is calculated taking into account the table amount payable by each of the spouses, the increased cost of shared custody arrangements and the conditions, means, needs and circumstances of each spouse and of any child for whom support is sought.

In shared custody situations where both parents earn income, many people assume that if they can get over the magic 40% line their child support obligation will be reduced because their obligation to pay support will automatically be offset against the other parent’s obligation to pay support.  If both parents earn roughly equal incomes many people assume that if they can get over the magic 40% line the child support obligations will cancel each other out.  Those assumptions are not correct.

These mistaken assumptions probably arise because many people confuse split custody with shared custody.  Section 8 of the Guidelines requires an automatic offset in split custody situations.  Section 9 of the Guidelines does not.  Section 9 simply refers to the “amount payable by each spouse” along with other factors related to the actual circumstances of the parties.

New Terminology Makes Child Support In Shared Custody and Parenting Situations Confusing

A difficulty arises because orders for parenting arrangements in British Columbia no longer use the same language as the Child Support Guidelines. Section 9 of the Guidelines refers to “physical custody” and “a right of access” because the Divorce Act speaks in terms of custody and access. However, under our new Family Law Act in British Columbia we no longer recognize custody as some sort of legal status. Physical custody is simply a question of fact – who has responsibility for the children at any particular time?  Similarly, if the children are primarily resident in one home the Child Support Guideline refer to the other parent as the “access parent” while the Family Law Act refers to that parent as a parent who is entitled to “parenting time”.

In fact some judges depart from the words “custody” and “access” and simply refer to “parenting time”.  Arguably the term parenting time better captures the actual test – who is responsible for the children at any particular time?  The term “access parent” is useful to distinguish that parent from the parent with whom the children are “primarily resident”.

To consider whether support amounts should be offset in a shared parenting situation, a two-step approach is required:

1. Has the 40% threshold been exceeded?
2. If the 40% threshold has been exceeded, should an offset apply?

To calculate whether a parent has care and control of a child for at least 40% of the time, the following is our suggested approach:

1. Parenting time is not calculated based on what might happen in future;
2. Parenting time is calculated based on what the order or agreement says, not what is actually happening;
3. Parenting time is calculated in hours, not days;
4. The number of hours is calculated on the basis of time the child is in care and control of a parent, not only the amount of time the parent is physically present with the child;
5. The hours a child spends sleeping at a primary residence are attributed to that parent;
6. If an access parent is actually exercising access and the child is sleeping in the access parent’s home, the sleeping time is attributed to the access parent;
7. If the primary residence parent either drops the child at school or picks them up after school, the hours in school are attributed to the primary residence parent;
8. If there is a fixed drop off for the access parent to deliver the child to school or daycare and the child returns to their primary residence at the end of the day, the school or daycare time for that day is credited to the residential parent;
9. If an access parent both drops a child at school and picks the child up at school at the end of the day, the number of hours in school that day is attributed to the access parent;

Of course, the above are only general rules.  Given the myriad of parenting arrangements that can be negotiated between parents or ordered by the Court, the Court will depart from these rules if the resulting calculation would be unfair or would lead to absurd results. For example, in a close case the obligation to pay child support could in theory be determined by where Mother’s Day, Father’s Day, birthdays and Christmas happen to fall in a particular year.

In considering how to apply Section 9 in shared parenting situations, the courts in some provinces place great emphasis on a strict calculation of hours and percentages. The problem with this approach is that a strict calculation places too much emphasis on the parenting schedule and the table amount payable by each parent while ignoring the increased cost of shared custody arrangements and the conditions, means, needs and circumstances of each parent and the children.

What Do BC Courts Do In Deciding Child Support In Shared Custody Cases?

For this reason the courts in British Columbia do not follow the above rules slavishly and will consider the 40% threshold in the overall context. In appropriate circumstances British Columbia courts will consider the other factors. For example the court may consider who pays most of the expenses for the children.  In a true shared parenting situation, where the children truly do live with each parent more or less equally, if incomes are equal the expenses paid by each parent should be equal. A British Columbia court may be inclined to ignore the fact that parenting time for the access parent is over the 40% threshold if the other parent is left to provide the primary residence for the children and pay forced to pay for most of the food, clothing, school, dental, health and other expenses for the children.

These issues can be time consuming, expensive and frustrating to deal with in the court system. At MacLean Law Group we are experienced in this complex and evolving area of the law. Our highly skilled mediators welcome the opportunity to assist parents to negotiate a solution which recognizes the interests of the children and both parents, at a fraction of the cost of a lawsuit. Call Nick at our downtown office at 604-602-9000.

The post Vancouver BC Shared Parenting Over 40 Percent Set Off Support appeared first on MacLean Family Law.

As Vancouver family wealth preservation lawyers and Vancouver’s top rated family law firm by Top Choice Awards, we handle hundreds of medium to high net worth and complex family law cases. We emphasize wealth preservation to our high income and substantial asset owning clients. We handle business property, excluded property and high family asset value division cases. We also deal with complex high income cases where, non-recurring income from sources such as capital gains, RRSP cash outs, severance payments and windfalls as they impact spousal and child support.

Lorne MacLean, Q.C. one of Canada’s most experienced and tenacious family lawyers leads our wealth preservation family law lawyer team. Mr MacLean works out of our downtown and South Surrey offices but also handles cases across BC and in Calgary Alberta.

In McKenzie v. Perestrelo, BC’s highest court decided that when calculating a paying spouse’s income for child and spousal support purposes There is no clear rule about the inclusion of RRSP withdrawals in a payor’s Guideline income; this is left to the discretion of the judge hearing the case.

Vancouver Non Recurring Income Support Lawyers

The trial judge found that  Mr. McKenzie’s RRSP income should not be included in the spousal support or child support calculations.

The wife received far less child and spousal support without the addition of this $100,000 so she appealed and she lost.

Vancouver RRSP Income Support Lawyers

Here is what our top Court said:

• RRSP income is presumptively part of a spouse’s income for child support purposes because it forms part of a person’s total income on a tax return and it is not listed as an exemption in Schedule III of the CSG. The spouse seeking to exclude the RRSP amount bears the burden of demonstrating that treating his or her RRSP withdrawal as income would not lead to the fairest determination of income: Fraser v. Fraser, 2013 ONCA 715 at paras. 97-99.
• The fact that the RRSP was equalized in the division of property between the spouses does not mean that RRSP withdrawals will be excluded from income for the purpose of determining child support: see Fraser v. Fraser, 2013 ONCA 715 at para. 102 (adopting Aitken J.’s reasoning in Stevens v. Boulerice, [1999] O.J. No. 1568):

• However, there is a general rule that “income generated from marital property which has already been divided should not be brought into income for purposes of determining the amount of support payable to a payee spouse”: Brown v. Brown, 2012 NBCA 11 at para. 16 (emphasis added), reconsideration allowed on a different issue, 2012 NBCA 69. This indicates that regard must be had to whether spousal or child support is at issue.
• Where RRSP withdrawals are regular and a spouse’s only source of income they are more likely to be included as income for the purpose of determining support: for example, see Edgar v. Edgar, 2012 ONCA 646.
• On the other hand, there is no presumption that “non-recurring withdrawals from RRSPs should be automatically excluded from income for child support purposes”: Fraser v. Fraser, 2013 ONCA 715 at para. 105.
• Where a spouse has contributed to an RRSP and withdrawn that amount in the same year, it may be unfair to include both the contribution and withdrawal in the Guideline income: Dillon v. Dillon, 2005 NSCA 166 at paras. 28-29.
• The court will consider the reason for the withdrawal. For instance, RRSP withdrawals have not been included as income where:

o   The amount has already been accounted for in the division of assets and was used to fund legal fees: de Bruijn v. de Bruijn, 2011 BCSC 1546 at para. 34.

o   The amount has been used to repay a debt incurred by the other spouse in their joint names: K.A.M. v. P.K.M., 2008 BCSC 93 at para. 51.

Our Vancouver Wealth Preservation Family Lawyers can help you develop a proper strategy before or during your marriage or common law relationship to protect the family property and excluded property as well as the income you have work so hard to create. Call Lorne MacLean, Q.C. at 604-602-9000 or request a consultation today.

The post Vancouver Wealth Preservation Family Lawyers appeared first on MacLean Family Law.

South Surrey and White Rock family lawyer, Lorne MacLean, Q.C. heads our White Rock Family Appeal Lawyers appellate advocacy department. MacLean has an enviable record of success in the BC Court of Appeal and the Supreme Court of Canada and over 30 years of experience on complex high net worth family law and family law appeal cases.

White Rock Family Law Appeals Lawyer Lorne MacLean, Q.C. can be reached at our South Surrey White Rock office at 604 576 5400.
Mr. MacLean recently won a huge BC family law appeal case where he increased child support, nearly tripled a spousal support award and established new law that decided a stockbroker’s book of business is divisible family property after taking over a case the client had lost at trial.

White Rock Family Law Appeals Lawyer Lorne MacLean, Q.C.

What White Rock Family Appeal Lawyers Must Do To Win An Appeal

The standard to win on appeal for White Rock Family Appeal Lawyers is a high one in that a party who loses at trial must show an error of law and/or satisfy the BC Appeal court the lower court judge was clearly wrong.

White Rock Family Appeal Lawyers Explain Appeal Extensions

South Surrey and White Rock family law appeals are tricky and tight deadlines apply so it is critical that if you are dissatisfied with a judgment you meet with Lorne MacLean, Q.C. immediately. The Court can extend the tight deadlines you must meet to file your appeal but you cannot count on getting an extension.

The recent BC Court of Appeal case of Vetrici v. Vetrici,  sets out what White Rock Family Appeal Lawyers must prove to get an extension for a client who failed to comply with the Appeal deadlines.

An appellant father in a family child custody case applied for orders extending the time to file and serve the appeal record and transcript because he failed to comply with the court deadlines. The appeal was removed from the inactive list and an extension was granted because the following test was met:

The criteria to be considered on such an application are set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259-260 (C.A.):

(a) whether there was a bona fide intention to appeal;

(b) when the respondent was informed of that intention;

(c) whether the respondent would be unduly prejudiced by an extension of time;

(d) whether there is merit in the appeal; and

(e) whether it is in the interest of justice that an extension be granted.

The final criterion encompasses the other four.

Ideally, you hire a skilled lawyer who settles your case on favourable terms and failing that you hire a seasoned lawyer who wins you family law case at trial. If you are responding to an appeal or are dissatisfied with the trial result call us for an opinion on what steps you should take. White Rock Family Law Appeals Lawyer Lorne MacLean, Q.C. is ready to help.
Call MacLean at 604 576 5400.

The post White Rock Family Appeal Lawyers appeared first on MacLean Family Law.

By Johanna Stein: 

Johanna Stein of MacLean Law answers questions about Family Law Courts in BC

Most days you’ll find me seated behind my desk at our downtown Vancouver family law office or standing in front of a judge at the Vancouver Law Courts, helping clients navigate through complex legal issues such as parenting arrangements, property division, and spousal support.

Occasionally, I get to wear a different hat, when I volunteer with West Coast LEAF (West Coast Legal Education and Action Fund). West Coast LEAF is an organization dedicated to ending discrimination against women using equality rights litigation, law reform, and public legal education.

This is where I come in: West Coast LEAF runs public legal education workshops called “Transforming Our Future”, which are designed for activists, advocates, and community service providers to learn about human rights law, equality rights, and how to develop legal strategies to address the impact of systemic discrimination. I am one of the trained facilitators of this fantastic workshop.

Know What Court You Need for Family Law in BC

We start the workshop by providing an overview of the Canadian legal system, and how the court system in BC works, which is useful information for everyone to know! I’m often asked:

What makes a court Provincial or Supreme?

And,

What’s the difference between the Supreme Court of British Columbia and the Supreme Court of Canada?

Believe it or not, our court system was established by our Constitution in 1867. At that point, the only courts that existed in Canada were trial courts, called ‘Supreme’ courts in most provinces. In Alberta, you have the Court of Queen’s Bench; in Ontario, the Ontario Superior Court of Justice. But in most provinces, you have a Supreme Court, such as the British Columbia Supreme Court. A “Supreme Court” has no limits on its power – by virtue of being a constitutional court, it has “inherent jurisdiction”. Inherent jurisdiction is a broad doctrine which allows the court to control its own processes and procedures.

Other courts, like the BC Small Claims Court, Traffic Court, the BC Court of Appeal, and even the Supreme Court of Canada were created later by statute. A court that is created by a statute is limited in what kind of cases it can hear, and what orders it can make.

What does this mean in a family law context?

Not all courts are created equal, so it’s important to know which court can best serve your needs before you start a legal action:

The Supreme Court can grant divorces, divide property between spouses, order the sale of property, and address child custody, guardianship and parenting arrangements; spousal support; and child support. In addition, only the Supreme Court can grant costs at the end of a trial to the winning party.

If you are married, or need to divide assets, you must use the Supreme Court, as the Provincial Court is more limited in scope.

The Provincial Court can only address: child custody, guardianship and parenting arrangements; spousal support; and child support.

Ready to start your family law action? Still confused about which step to take? Call MacLean Law to discuss your choices – mediation, arbitration or litigation.

If you need to go to court – we are here to guide you in the right direction to resolve your legal issues.

The post What Makes a BC Court Provincial or Supreme? appeared first on MacLean Family Law.

Lorne MacLean, Q.C., Vancouver family law wealth preservation lawyer

Lorne MacLean, Q.C., founder of the highly rated MacLean Law handles hundreds of complex, later in life middle age separations and divorces. The “grey divorce” wave has hit Canada and BC and a significant portion of our Vancouver high net worth family separation practice relates to wealth preservation strategies at the end of a long term relationship or start of a new relationship later in life.

We deal with division of companies, businesses, partnerships, professional practices, books of business, goodwill, stocks, options and other lucrative assets and high income issues.

In cases where other investors or partners or lenders are involved, your family lawyer will be called upon to finesse a settlement that leaves your financial empire unscathed. Make sure they are up to the challenge.

“Grey Divorce” has been steadily growing among those 55 and over.

A recent Globe and Mail article noted that:

“According to Statistics Canada, “grey divorce” has been steadily growing among those 55 and over, with rates expected to increase as more people continue to age.

As baby boomers — their children grown and moved out of the family home — reach the retirement-age threshold, divorces among couples 65 years old and older are becoming more and more common, according to Statistics Canada numbers that pre-date Wednesday’s census release.

In 2008, there were 1,237 divorces among women 65 and older, 2,486 among men of that age and 852 divorces where both partners were over the age of 65, the agency’s figures show.”

In past decades, the divorce rate for people aged 50 and over has become the fastest growing rate among married couples and studies show that divorce or separations amongst middle age couples sometimes referred to as “grey divorces”, now exceed 25% of all divorces. It is also clear that these divorces involve higher financial stakes as the wealth accumulated by the couple and their income earning power is at peak levels.

Vancouver high net worth and wealthy couples may own or operate commercial property or a successful business, have stock options, retirement accounts or other financial assets. These assets and income streams from high paying jobs can bring fulfillment to life but can make dividing assets in a BC separation more challenging.

Our goal at MacLean Law is to minimize disruption and to allow the parties to separate discretely in a way that leaves them both better off emotionally and secure financially.

When you add in issues of:

• income taxes, capital gains taxes and how to get money out of businesses or RRSP’s with the least tax;
• looming retirement and how that affects spousal and child support;
• private pension division;
• the often aggravating factor of remarriages and how this impacts spousal support;
• the arrival on the scene of new and possibly younger partners and fears on how this will impact the former couple’s inheritance planning for their children;
• exceptions to child and spousal support for high income earners;
• self sufficiency objectives for partners leaving long marriages or relationships;
• how gifts and inheritances have been dealt with;
• excluded property calculations dealing with the values of assets from decades ago;

it is critical you hire a seasoned and savvy high net worth family law lawyer like Lorne MacLean, Q.C. or his equally experienced senior associates such as Nick Davies, Shelagh Kinney or Audra Bayer.

If you are separating later in life and you are worried about protecting your financial security and the assets you’ve worked so hard to accumulate, you deserve the best legal representation. Call Lorne MacLean at 604 602 9000 or request a consultation today.

The post Vancouver Family Law Wealth Preservation Lawyer appeared first on MacLean Family Law.

The most important gift you can give your children during the holidays is joy and laughter, not stress. Parenting Arrangements can help.

Summer is the time of year children look forward to the most. Remember being in school and counting down the days to summer? Two months of sleeping in, no homework, playing with friends, swimming, skateboarding, bike riding, visits to the cottage; campfires; slurpees, ice cream, watermelon, strawberries, toasted marshmallows and smores.

For families who are separated or divorced, a summer parenting arrangement is important for a happy holiday for all family members. Holiday schedules should be planned and arranged by the year for non-school schedules and parent travel schedules. Planning in advance can eliminate conflict, ensure a great vacation, and provide equal opportunity for parents to share precious holiday time with their children.

Summer scheduling should not become a source of conflict. We expect our children to pick and choose their battles. Teach them how by modelling that behaviour for them when planning the holiday arrangement. Remember these days are more than holidays – they are significant days of childhood and they should be positive holiday memories.

Tips for Positive Parenting Arrangements

Dr. Richard Warshak, psychologist and author of Divorce Poison, wrote an article featured in the Huffington Post on May 12, 2011, as guidance for parents dealing with the issue of summer holidays.

He provides 6 tips to “avoid the common pitfalls” that can poison a child’s holiday pleasures:

1. Prepare your child: If you are the parent sending your children, don’t burden them with your own anxiety. Help your children anticipate with enthusiasm and the expectation of a pleasurable time with your ex;
2. Be ready for your child: If you are the receiving parent, make sure your home is child-friendly and safe for babies and toddlers and toys and games are available that can maintain children’s interests. Arrange play dates with other children. Some parents want to occupy the child’s time exclusively to compensate for absence during the school year. This is short-sighted. You want your child to be comfortable in your home. This means spending some time playing with other children and with extended family;
3. Be sensitive to your child’s feelings: If the child objects to going for the holidays or on a trip, try to figure out why. Is it normal pre-transition jitters, is the time period too long, or has the child had prior bad experiences? Both parents should facilitate phone or skype contact; sometimes it helps to prearrange times for these to take place;
4. Be flexible: If both parents can agree on a different schedule, it is not necessary to follow the same schedule every summer. What works for children when they are five is not necessarily the best plan when they are fifteen. Sometimes it can help to restructure the contact into smaller blocks of time so that a young child is not away from her familiar environment for too long a period of time. Keep your focus on your child’s needs, not your “rights”;
5. Don’t use the word “visit”: Visit means that a person is set apart, in some fundamental way, from others at the same location. A visitor is a guest in the home. Without thinking about it, every time we use this term to designate the time children spend with a parent, we endorse a destructive idea. We are telling children that after divorce their relationship with one parent is something less than a normal parent-child relationship. Visiting communicates the message that one parent is no longer central in their lives. He/she is no longer a parent in the same sense as he was before the divorce. Instead of your children “visiting” a parent this summer, have them spend time with the parent. Have them live with the parent;
6. Allow children to take possessions that comfort them: Young children will want to take their security blanket, older children will want to take a favourite toy. Some parents do not want objects from their home to go to the ex’s home; if they keep their focus on their child’s needs, parents will be less rigid about this.

Childhood time is precious – it is not a renewable resource. Build memories, not conflict. The most important gift you can give your children during the holidays is joy and laughter, not stress. Parenting on your own is hard enough. Don’t add to this by making choices that create unnecessary conflict in the parenting relationship.

Contact MacLean Law if you need more guidance on dealing with the conflict of separation and divorce. We can help you stay child focused and create positive workable parenting arrangements. We can also help you access local community resources.

Call us today at 1-877-902-6000 or book a consultation for positive parenting arrangements.
Have a safe and happy summer from me, my family and the lawyers at MacLean Law.

The post Positive Parenting Arrangements During the Summer Holidays appeared first on MacLean Family Law.

Lorne MacLean Q.C. and MacLean Law’s experienced associates applaud the changes to the Vancouver Family Property Division portion of the BC Family Law Act. There are two key definitions that our Vancouver family property division lawyers apply to Vancouver and BC family property division cases to ensure fair property division when couples are separating.

The following simple summary is taken form the Provincial Government’s excellent website that explains the new act and how our Vancouver Family Property Division Lawyers apply it :

1. BC Common Law Spouses Have Rights

The property division rules will apply to all married spouses, as well as to unmarried spouses who have lived in a marriage-like relationship for at least two years. The inclusion of unmarried spouses in the property division guidelines recognizes the number of common-law relationships is on the rise and that common-law remedy of constructive trusts inadequately protects the interests of this growing number of unmarried spouses.

2. BC Family and Excluded Property

The Family Law Act moves to an excluded property model that involves less judicial discretion, particularly at the initial stage of identifying which assets are subject to division. It will no longer rely on a two-stage process of identifying the property subject to division and then determining if that property has an “ordinary use for a family purpose,” as provided for in the Family Relations Act.

Family property will include all real and personal property owned by one or both spouses at the date of separation unless the asset in question is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Whether an asset was ordinarily used for a family purpose will not be relevant in deciding if it is family property.

The exclusions include:

• property acquired before or after the relationship;
• gifts or inheritances;
• damage awards and insurance proceeds with some exceptions; and
• some kinds of trust property.

The excluded property division model is a better fit with people’s expectations about what is fair: they share the property and debt that they accrue together during their relationship.

Our Vancouver family property division lawyers are ready to help you deal with simple to complex excluded and family property division cases. Book a consultation with us to ensure you obtain a fair family property division settlement. Call today to meet a MacLean Law lawyer in Vancouver, Surrey, Kelowna or Fort St. John.

Resources:
The provincial government has an excellent resource called “The Family Law Act Explained’. Details are outlined in Part 5 of the Vancouver Family Property Division section of the Act.

The post Vancouver Family Property Division Lawyers appeared first on MacLean Family Law.

Lorne MacLean, Q.C. successfully triples a trial Vancouver spousal support award

Our Vancouver spousal support team acts across BC for both paying and receiving spouses. We handle BC medium to high net worth and income cases where the spousal support stakes are as high as the amounts that can be paid.

In the recent Vancouver high income, spousal support case of Lightle v. Kotar, Lorne MacLean, Q.C. successfully tripled a trial Vancouver spousal support award and removed a time limit on payment of Vancouver spousal support by focusing the BC Court of Appeal on a proper application of the Spousal Support Advisory Guidelines.

There are two versions of the Vancouver Spousal Support Advisory Guidelines. One Vancouver spousal support formula applies to marriages where there are no dependent children and one applies when Vancouver child support is also payable.

The following extract from the SSAG Final Version summarizes the formula to be applied to Vancouver spousal support cases:

“Under the basic without child support formula:

• The amount of spousal support is 1.5 to 2 percent of the difference between the spouses’ gross incomes for each year of marriage, to a maximum range of 37.5 to 50 per cent of the gross income difference for marriages of 25 years or more (The upper end of this maximum range is capped at the amount that would result in equalization of the spouses’ net incomes — the net income cap.)
• Duration is .5 to 1 year of support for each year of marriage, with duration becoming indefinite (duration not specified) after 20 years or, if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the “rule of 65″).

Top lawyers know that the formula allows for ranges in the amount of Vancouver spousal support from low to high and ranges for duration also from low to high.

So Where On The Range Will Your Vancouver Spousal Support Case Fall?

Vancouver spousal support cases will vary in where they fall on the range, for the amount paid and the duration of the payment for Vancouver spousal support based on the following factors:

• Strength of any compensatory claim (giving up job, raising children, moving to further other spouse’s career)
• Recipient’s needs
• Age, number, needs and standard of living of children
• Needs and ability to pay or payor
• Work incentives for payor
• Property division and debts
• Self-sufficiency incentives (to encourage a receiving spouse to work)

Many lawyers default to the mid-range of Vancouver spousal support but to do this is a disservice to the client without a proper analysis of the factors.

Whether you are being asked to pay Vancouver spousal support, you need spousal support, or you are trying to vary or end Vancouver spousal support, you deserve top legal representation from Vancouver’s top rated family law firm. Call us toll free across BC to meet with us to discuss your BC spousal support cases at 1 877 602 9900 or request a spousal support consultation. We have offices in Vancouver, Surrey, Kelowna and Fort St John.

The post Vancouver Spousal Support appeared first on MacLean Family Law.

The Vancouver Parental Alienation Lawyers at MacLean Law know that in high conflict separations, children often take sides with one parent – usually the parent who has the children for most of the time. They view the other parent (usually the absent parent), as all bad and attribute negative qualities to them. Your children’s behaviour may be due to Vancouver parental alienation or estrangement.

Contact MacLean Law today or call us on 1 877 602 9900 if you are going through a high conflict separation and your children are showing signs of  Vancouver parental alienation.

In this article:

What is parental alienation?
What are the signs of parental alienation?
Parent’s conduct and other factors relevant to detection of parental alienation
Get professionals involved

In parental alienation, one parent actively estranges the children from the other parent, while in parental estrangement cases, it is the conduct of the absent/estranged parents that affects his or her relationship with the children.

If you are going through acrimonious separation and your children are demonstrating signs of alienation or allegations of parental alienation are being made against you, it is critical that you get experts such as a psychologist and legal counsel involved at an early stage. If your child demonstrates signs of parental alienation, contact us. Our team of highly qualified lawyers would be more than happy to assist you.

What is Vancouver parental alienation?

Parental alienation is a form of family interactional dynamic in which one parent engages in a pattern of behaviors to co-opt the children in a coalition with that parent to deprecate and reject the other parent with no justification. Parental alienation usually occurs in high conflict divorces. It can be characterized as a form of child abuse, whereby one parent brainwashes the children against the other parent.

There is a spectrum of parental alienation ranging from low to extreme cases. According to experts, the middle of the spectrum of parental alienation contains situations referred to as “an alliance with one parent” without complete rejection of the other parent. The children have a consistent preference for one parent during the marriage and/or after separation, often wanting little contact with the other parent after separation. Such alliances typically form in older children in response to the dynamics of separation, and involve the child taking a side based on his or her moral judgments on which parent was in the wrong. Although alliances are temporary, they may harden into alienation in a particularly bitter and protracted divorce proceeding. (see Alienated children and parental separation: Legal responses in Canada’s family courts by N Bala, BJ Fidler, D Goldberg, C Houston – Queen’s LJ, 2007)

You need to get professionals involved at an early stage both psychologists and legal professionals who have the expertise in parental alienation to prevent parental alienation from advancing to the extreme stage.

What are the signs of  Vancouver parental alienation?

According to experts (Dr. Bernet and Gr. Gardner), children might be subject to parental alienation if they manifest the following behaviours:

1. Your children demonstrate a persistent rejection without justification or denigration of a parent that reaches the level of a campaign;
2. Weak, frivolous, and absurd rationalizations for the children’s persistent criticism of the rejected parent;
3. Lack of ambivalence;
4. Independent-thinker phenomenon, where your children proudly state that the decision to reject the other parent is theirs, not influenced by the preferred parent;
5. Reflexive support of one parent against the other;
6. Absence of guilt over exploitation of the rejected parent;
7. Presence of borrowed scenarios;
8. Spread of animosity toward the rejected parent onto the extended family.

However, these factors should not be considered in isolation and an expert needs to determine whether there is any parental alienation and if so the extent of it.

Parent’s conduct and other factors relevant to detection of  Vancouver and BC parental alienation

Dr. J. Michael Bone and Michael R. Walsh, in their article “Parental Alienation Syndrome: How to Detect It and What to Do About It” define four criteria that can help identify whether a parent is actively involved in parental alienation. These four criteria are:

1. The parent actively denies access and blocks contact with the children and the absent/nonresident parent. The parent justifies actions in blocking contact is that of protection and in extreme cases it will take the form of child abuse, quite often sexual abuse.
2. The parent falsely alleges that the absent/non-resident parent has abused the children or sexually abused the children. Most often the false allegations of sexual abuse occur in relation to younger children, who are vulnerable.
3. The children had a good and positive relationship with the absent/non-resident parent prior to the breakdown of the relationship and there is substantial deterioration of the children’s relationship with the absent/non-residential parent after separation.
4. Fear of the children to displease or disagree with the alienating parent because of the consequences that are attached to disagreeing with him or her. For instance, the alienating parent may tell the children to go and live with the other parent, whenever the children speak positively of the other parent. Thus, creating a sense of abandonment. The alienating parent, through his or her conduct, forces the children to choose parents.

According to Bala and Findler, alienating parent behaviours include:

1. Rarely talks about the other parent; disinterested in the children’s time with other parent after the contact; cold shoulder, silent treatment, moody after return from visit
2. No photos of the target parent; destroys evidence of the other parent
3. Refusal to hear positive comments about the rejected parent and is to quick ti discount good times as trivial and unimportant
4. No encouragement of calls to other parent in between visits
5. Indulges child material possession and privileges
6. Refusal to speak directly to the other parent and has no concerns with missed visits with the other parent
7. Does not believe that the child has any need for relationship with other parent
8. Portrays the other parent as dangerous and may inconsistently act fearful of other parent in front of the children
9. Makes delusional false statement regarding the other parent to the children

However, in some cases of parental alienation, the conduct of the alienating parent may be less important. For instance parental alienation may occur because of the rejected parent’s inept parenting and counter-rejecting behaviour (before or after rejection), domestic violence or abuse; chronic litigation leading to a “tribal warfare”, which includes extended family members and friends getting involved, siblings dynamic and pressure, a vulnerable child, developmental factors, and gender preferences (See Children resisting post-separation contact with a parent: concepts, controversies, and conundrums by Barbara Fidler and Nicholas Bala quoting Kelly and Johnston, Family Court Review, 48, 2010, 10-47.)

It is also possible that the children are estranged from one parent because of the conduct of that parent (i.e. the estranged parents treats the children poorly, is disengaged in children’s life, does not contact the children because he or she is busy doing something else, does not insist on having a relationship with his or her children, fails to see his role in creating the situation, etc.). It not uncommon for the estranged parent to make allegations of parental alienation.

Effect of Parental Alienation on the Children

Parental alienation has adverse impact on the wellbeing of the Children. In Lopez v. Dotzko, [2011] O.J. No. 5211, the court states:

“(111) The adverse impact of parental alienation on a child has been well documented in the literature on child development and it has increasingly been recognized by the court. In A.G.L. v. K.B.D., [2009] O.J. No. 180 (ON S.C.), McWatt J., observed, based on the evidence of Dr. Barbara Fidler, a clinical psychologist, and a chapter of a book which Dr. Fidler was publishing on the topic, entitled “Understanding Child alienation and Its Impact on Families”:
There is a broad range of effects of this severe sort of alienation on a child. Some of them are low self-esteem to self-hatred, guilt, feelings of abandonment, feelings of being unloved and unworthy. Children may feel self-doubt and doubt about their ability to perceive reality. They may have simplistic or rigid information processing. They can have inflated self-esteem. They may have poor differentiation of self. They may be aggressive and have poor impulse control. Where there are court orders and children become aware that the orders are not being obeyed by the alienating parent, these children can learn that it is acceptable not to obey court orders. Alienated children can lack compassion and remorse and can also develop an ability not to feel guilt.”

Get professionals involved

It is critical to get professionals involved at an early stage both psychologists and legal professionals who have the expertise in parental alienation in order to deal with cases of parental alienation. If your case involves parental alienation, contact us and our team of highly qualified lawyers will be more than happy to assist you. In the Canadian Cases on Parental Alienation blog we review the Canadian law on parental alienation.

By Nassim Nasser

The post Vancouver Parental Alienation appeared first on MacLean Family Law.

Lorne MacLean, Q.C. top rated BC family lawyer for parental alienation

MacLean Law has been in the forefront of protecting children during separation for over 30 years.  BC parental alienation and or BC parental estrangement is a serious issue in high conflict cases. We have held seminars and created videos to explain the hurtful scenario that occurs in BC parental alienation cases. We can be reached toll free across BC and Canada at 1-877-602-9900.

In this post we review cases on Canadian and BC parental alienation to demonstrate the approaches that the Canadian courts take in dealing with cases of parental alienation or estrangement. Read our blog post on BC Parental Alienation or Estrangement to find out more about parental alienation and estrangement.

Whether allegations of BC parental alienation are being made against you or you feel that you are being subjected to BC parental alienation, it is critical that obtain legal counsel who have the experience and knowledge of dealing with cases involving  BC parental alienation, as the case law demonstrates, the court may order complete change in parenting arrangements such as sole custody/sole guardianship to the absent/alienated parent.

Canadian Cases where claims for parental alienation were successful

Canadian courts’ approach to remedy consequences of BC parental alienation depends on the circumstances of each case, which includes the expert evidence, the age of the children, the blameworthy conduct of parents in alienating the children. The remedies ordered in BC  parental alienation cases ranges from parties and children attending counseling to a complete reversal of the parenting arrangement. In extreme cases, the courts have ordered sole custody/sole guardianship to the alienated/absent parent, with no parenting time for the alienating parent. Please be advised that the list of cases provided here is non-exclusive.

Cases where the court ordered sole custody/sole guardianship to alienated/absent parent:

In the case of P. M. v. M. N., [2008] B.C.J. No. 2308, 2008 BCSC 1501 (B.C.S.C), one of the issues in dispute was the parenting arrangement of the parties’ 9 years old daughter. After separation, the child did not want to spend time with her father. The mother initially dictated father’s parenting time with the child and required that the parenting time be supervised and at her own place and only in 2 specific rooms. The father applied to court and obtained an order that parenting time be unsupervised. Despite the order, the mother complained to the Ministry and continued to impose her requirement that the parenting time be supervised. The mother was found to be in contempt of the court. Taking into account expert evidence regarding existence of parental alienation through mother’s conduct, the court concluded that the mother had engaged in parental alienation and the long-term effect on the child of staying in the home of the mother and grandmother would likely be detrimental. On the other hand, the father had taken parenting courses and was completely committed to the child. As a result, the father was awarded sole custody and sole guardianship of the child.

In the case of S.O. v. S.C.O., [1999] N.B.J. No. 326, the mother brought an application against the father for sole custody of their two children, aged 9 and 7. After the separation, the father moved with the children to Nova Scotia and denied access to the mother. The mother obtained an interim custody order. The father alienated the children from the mother, and tried to make her situation as difficult as possible. The children were in a constant state of confusion because of the father’s negative behaviour. A psychological assessment revealed that the children suffered from parental alienation syndrome, caused by the father. The father was impulsive, immature and could not face reality or maintain adequate judgment. He had a borderline personality disorder and was opportunistic and manipulative. He was not willing to receive help for his problems. The mother had been psychologically abused during the marriage. However, she was open, empathetic and warm. She did not exhibit psychological problems and was not addicted to alcohol or drugs.

The court awarded sole custody of the children to the mother and the father was to have no access to the children until he attended counseling. The court stated:

“61 The mother emerged as the parent most closely associated with the needs of the children. She has the “best interests” of her children in mind and is concerned with their overall nurturing and development. That includes a relationship with their father, at a future date, when he has received counselling.
62 If the father were given custody, he would likely manipulate the situation to prevent the mother from having any access. He has shown, by his behavior throughout these proceedings, that he is a controlling individual who will not accept that his behavior is damaging the children, perhaps irretrievably.
63 Under the provisions of Section 129(2) of the Family Services Act, the Court must determine the issue on the basis of “best interests.”
….
64 The mother is granted custody of the children and, access is suspended as previously ordered on March 15, 1999. There will be no access until the father attends counselling and is able to convince a court that he can appropriately relate to his children without involving them in his dispute with his wife and otherwise alienating their affections for their mother.”

In J.M.M. v. K.A.M. 2005 NLUFC 2, LeBlanc J, considered the appropriate result from a finding of parental alienation was to award the innocent parent sole custody as well as sole and absolute right and authority for all decision making. Despite a finding of parental alienation, the Court awarded the father, generous access to the 12 years old boy.

In J. W.C. v. J. K. R. W., [2014] B.C.J. No. 503, despite the fact that the parties had shared and equal parenting arrangement for 3 years in relation to their two children, aged 13 and 11, they resisted seeing their father. The section 211 report found that the mother had alienated the children from the father. The section 211 author, Dr. England, was also present at the chamber’s application to provide viva voce evidence. Based on the expert evidence and the affidavit evidence of the parties, the court found that the mother had engaged in parental alienation and that this constituted a change in the circumstances warranting varying the shared and equal parenting order. The father was granted sole custody, sole guardianship and primary residence of the children. The court further ordered the parties and the children attend Family Reflections Reunification Program (FRRP) as the traditional counseling had not resolved the conflict between the parties or modified their behaviours.

Cases where the court ordered substantial increase in parenting time to the absent/alienated parent

In the case of Elliott v. Elliott, [1996] A.J. No. 74, the father applied for sole custody of the parties’ child. The parties were married for three years and they a child together who was 4 years old. Since separation, the child had, by agreement between the parties, resided with the applicant father with weekend access to the respondent mother. The evidence indicated that the child was well cared for, nurtured and loved by each parent and that he was attached to both parents. However, the father attempted to alienate the child from the mother and also displayed suppressed hostility.

Relying on expert evidence and oral testimony of the parties, the court dismissed the father’s application and ordered joint custody of the child with the day-to-day residence of the child to be with the mother. The court found that the residual feelings which the applicant father had for the respondent made a smooth interaction with the child problematic. According to the court, the most appropriate method of insuring that the best interests of the child were met was to order joint custody. The father appealed the case, however, his appeal was dismissed.

In Lopez v. Dotzko, [2011] O.J. No. 5211, the parties had one child together, a 14 year old daughter. Since separation, the parties had an acrimonious relationship. When the parties separated, the mother had custody of the child. However, beginning in April 2002, the mother entered into consent orders giving temporary custody of the child to the father. The mother, who did not speak English well, was not in a strong financial position and was intimidated by the father and his parents, believed the terms of the consent orders would protect her continued access to the child. Since then, the child had lived with the father and his parents. The mother has exercised access to her but, since 2005, that access had been limited to two hours per week at a supervised access centre.

The child had indicated to a social worker that she wished to remain in the father’s custody and that her access with the mother be limited.

The Children’s Lawyer recommended that the father continue to have sole custody and primary residence of the child and that the mother exercise access on the weekends, three out of four weekends per month, that the mother attend for relationship counselling with the child and the father attend a parenting group.

The mother sought interim custody or unsupervised access. The father opposed the mother’s motion for interim custody or increased unsupervised access on the basis that there had been no material change in circumstances that justified variation of the previous court order.

The court, taking into account the clinical assessment of the child, found that the father had alienated the child from the mother. The court also found that there was a material change of circumstances that warranted changes in the parenting arrangement because

1. the father had failed to co-oporate with the reconnection counselling, in breach of a previous order; and
2. the father undermined the mother’s relationship with the child amounting to parental alienation.

The court, having found parental alienation, raised concerns about relying on the child’s view as it was not possible to determine whether the child wishes were actually her own wishes or that of the father. The court was also mindful of making drastic changes to parenting arrangement in light of conflicting affidavit evidence and the affect that such changes might have on the child. The court, however, ordered that mother’s access to the child be substantially increased as there was evidence that the child may have suffered psychological or emotional harm by the interference of her relationship with the mother. The mother was to have access to the child one evening per week and alternate weekends, in addition to holiday access.

Cases where the court ordered counseling or made no changes in the parenting arrangement

In Samuelson v. Smauelson, [2011] N.J. No. 362, one of the issues in dispute was the parenting arrangement in relation to the parties’ 14 year old son and 9 year old daughter. The court having found that there was parental alienation by the mother in relation to the son (but not the daughter), refused to reverse the parenting arrangement but rather ordered counseling. According to the court:

“50 My analysis and consideration of what is in Kyle and Hannah’s best interests must be determined by reference to their conditions, means, needs and other circumstances: Section 16.(8) of the Divorce Act. Because facts differ — so do orders.
51 In Gulliver v. Earle (supra) after determining that there was both parental alienation and PAS orchestrated by a father, I concluded that the best interest of the parties’ nine year old daughter dictated a reversal of custody based upon the young child’s conditions, means and circumstances.
52 In D. (A.J.) v. D. (E.E.) (supra), having concluded that the mother directly and indirectly alienated the parties’ five year old daughter from her father, because a reversal of custody would be too much of a traumatic disruption to the child, I ordered separation anxiety therapy.
53 Kyle’s condition, means and circumstances include: his belief that he is safe and secure in his mother’s home and his father didn’t care about his safety; his dad will put him in a boy’s home to live; his father has hurt him physically and emotionally and his father has ruined his life. It also cannot be ignored that Kyle has had a high level of stress for many years which has, and does require counselling.
54 It is also of considerable significance that Kyle has run away from his father’s house on three or four occasions. He has also indicated to child psychologist, Beverly McLean that he will keep running away from his father’s home if he cannot live with his mother on a full-time basis.
55 In addition, over a year has passed since Kyle attended limited counselling with Ms. Shortall. I have concluded that such counselling has not even reached the embryonic stage of a possible reintegration between Kyle and his father. This is regrettable.
56 I find that the foregoing facts illustrate that Kyle’s conditions, means and circumstances do not support a reversal of custody, at this time, because it clearly is not in this 14 year old boy’s best interests. This is principally because one can easily conclude that he will again run from his father’s home, a home which Kyle does not even wish to visit, and this could expose Kyle to substantive risk.”

In W.C. v. C.E., [2010] O.J. No. 2738, although the court found that the mother had severely alienated the parties’ 13 year old daughter from the father, the court refused to make a reversal of the parenting arrangement in favour of the father. Rather, the court ordered that father and the son attend therapeutic reunification counselling to effect reconciliation and reunification between the child and the father. According to the court the short and long term effect of immediate custody reversal were too great to be given serious considerations.

In Fielding v. Fielding, [2013] O.J. No. 3652, the mother brought an application to change the parenting arrangement on the bases that father had alienated the children from the mother. The parties had 3 children together, twins aged 15 and a daughter aged 17. The daughter and one of the twins resided with the father and the other resided with the mother. The father claimed that it was the mother’s behaviour that estranged the children from her. The father asked for a sole custody of the two children residing with him and joint custody of the child residing with mother.
The court found it was a novel case as both parents had engaged in alienation conduct and dismissed both their applications for change in the parenting arrangement. According to the court:

“166 My finding is that this is not a case of pure alienation. To the contrary, I accept Dr. Sutton’s opinion that it is a mixed pathology case where alienating conduct by both parents has been at play; and where there are also other complicated contributing factors. The mother submits that both parties are normative parents and that, without this acceptance and acknowledgement, the family will remain fragmented. I disagree. The Fieldings parenting is not normative. Significantly, the mother’s own parenting style and current inability to see or accept her contributions to her relationship problems with Katie and Sean, contra-indicate the change in their custody that she seeks. Residential custody of these children could not confidently be transferred to her. The case law does not include examples of court ordered changes in custody in mixed cases such as this where the shortcomings of the parent seeking custody are a significant contributing factor to the dilemma.

167 The respondent’s own need to stand up to the applicant, and to be seen by the children as doing so, plays out negatively in his parenting and decision-making. He has involved Sean and Katie in the parental conflict and has permitted and supported their rejecting behaviours towards their mother. This has not been in their best interests. Although he articulates an understanding of the dynamic between himself and Natalie and a desire to repair it, to date he has been unable to accomplish this.

168 Little weight is given to the residential preferences of even a teenage child when those views are not independent, rather, are the product of unrelenting influence by an alienating parent. I find that all of the Fielding children have been negatively influenced to differing extents by their residential parent against their other parent, Katie most significantly, followed by Sean and then Natalie, in descending order. But Katie’s and Sean’s views of their mother, and Natalie’s of her father, are also the product of their own experiences with her/him, both before and after their parents’ separation.

169 The views of these children result from independent experience and parental influence. This is not a case where any of the children has been turned against a parent by “pure” alienation. In these circumstances and given their ages, I am not prepared to make the change in residential custody sought by their mother.

170 I distinguish between declining to require Katie and Sean to reside with their mother, and requiring them to participate actively in steps intended to remediate their relationship with their mother. The same goes for Natalie Despite their teenage years and points of view, the court has a duty to also consider their longer term interests in achieving viable relationships with both parents and with each other.”

Cases where the court did not find parental alienation in absence of expert evidence:

If you feel that your children are being subjected to parental alienation, it is important to have experts involved as the court may refuse to make a finding of parental alienation in the absence of expert opinion. For instance in the case of L.D.M. v. R.H.M., [2014] B.C.J. No. 1021, the court stated at para 130:

“I cannot conclude on the basis of the evidence that is before me that this is a case of parental alienation or PAS. I have no expert report or that would allow me to reach that conclusion about PAS [Parental Alienation Syndrome].”

If you need assistance involving cases involving parental alienation, do not hesitate to contact us and our team of experienced lawyers would be happy to assist you.

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Our BC spousal support lawyers deal with spousal support cases and the Spousal Support Advisory Guidelines with and without child formula on a daily basis. We deal with short and long term marriages involving medium to high net worth spouses. After the initial award of BC spousal support is made applications to increase, reduce or even end support can occur. One big ground for changing BC spousal support, is the remarriage or entry into a new relationship of one of the BC spousal support parties. Many people think support would automatically end but they would be wrong under our BC spousal support laws. Our BC spousal support lawyers have offices across BC in Vancouver, Surrey, Kelowna and Fort St john/ Dawson Creek.

BC Spousal Support and Remarriage lawyer Lorne MacLean, QC

Does Remarriage or Living in a New Marriage Like Relationship Automatically Cancel Spousal Support?

For the paying spouse remarriage or re-partnering will usually have no impact on ending or reducing spousal support.

Contrary to popular belief, the remarriage or re-partnering of the supported spouse rarely immediately reduces the amount nor automatically cancels the spousal support. A receiving spouse for support in a long marriage needs to avoid the urge to agree to cancel support because of a new relationship because if the new relationship ends this could leave the spouse from a long marriage destitute.

BC Spousal Support and Remarriage May Result In A Change Over Time

Remarriage or a new relationship can have an important impact on reducing the amount and length of spousal support. The new partner’s income is important.

In short-to-medium length first marriages, involving younger support receiving spouses who have suffered limited career damage or foregone opportunities for work, the new relationship can lead to almost immediate support cancellation.

But when support is paid after a long traditional marriage to an older spouse, the remarriage is unlikely to terminate spousal support, although the amount may be reduced and the length of payment shortened.

Factors such as:

• just how serious and stable the new relationship is; and
• the comparative financial means of the new spouse or partner as compared to the former support paying spouse is key;

Remarriage to a rich new spouse is ideal for ending support either sooner or later. A troubled short term uncommitted relationship to a new “slacker

‘spouse is less likely to reduce or end spousal support support.

The key point to learn from this is that if you don’t want to pay spousal support, you should marry a spouse with good prospects for self sufficiency and share the child rearing and homemaking duties to ensure both of you reach your career potential.

Entering into a marriage agreement that sets out what each parties expectations are for the thorny issue of spousal support and alimony is also a wise move.

If you have a BC Spousal Support and Remarriage or new relationship case call us toll free at 1-877-602-9900 so you get the best strategy to move forward in your life.

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MacLean Law BC family and excluded property division lawyers handle medium to high net worth property division claims involving both BC family property and BC excluded property. We have 4 family property division offices across BC in Vancouver, Surrey, Kelowna and Fort St John, BC.  Call us toll free right away if you have a case involving BC excluded property or BC family property at 1-877-602-9900.

BC Excluded Property and BC Family Property Division Lawyers

How is BC Excluded Property Treated?

Excluded property in BC  that is received by one spouse alone is not shared except for the gain that occurs on it during the marriage, or in a common law or marriage like relationship that has lasted more than 2 years. The person claiming the property is excluded such that its starting value is not shared, bears the onus of proving it came from an excluded source and was received by them alone and not jointly by both spouses. When excluded BC property is used to buy new property the exclusion may be traced into the new property. “Tracing” is tricky so call us about this complex topic. Whenever someone seeks to have property excluded from the BC Family Law Act’s family property division, an experienced family lawyer should be consulted by each spouse.

What Is BC Excluded Property Under the BC Family Law Act?

BC Excluded property

85  (1) The following is excluded from family property:

(a) property acquired by a spouse before the relationship between the spouses began;

(b) inheritances to a spouse;

(b.1) gifts to a spouse from a third party;

(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for

(i)   loss to both spouses, or

(ii)   lost income of a spouse;

(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for

(i)   loss to both spouses, or

(ii)   lost income of a spouse;

(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;

(f) a spouse’s beneficial interest in property held in a discretionary trust

(i)   to which the spouse did not contribute, and

(ii)   that is settled by a person other than the spouse;

(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

Need Help With A BC Excluded Property Case?

Excluded property in British Columbia is a developing concept and how  the BC excluded property is used may pose complications.  If BC excluded property is put in joint names or excluded BC property is used to buy joint property or to pay off joint debts problems excluding it may occur.  How you use your BC excluded property and what happens if it goes down or up in value is something that requires advance discussion with one of our acclaimed BC family law lawyers.

If you have concerns over the division of BC family property or BC excluded property, don’t wait to meet with us. Call our BC excluded property lawyers now toll free at 1-877-602-9900 or fill out our quick and easy contact form.

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The BC family property division lawyers at MacLean Law approve of attempts by the BC government to provide more certainty to family property division upon relationship breakdown. How much more certain the BC family property divsion law now is will be decided over the next few years. For our medium to high net worth income and asset clients the steady guidance of one of our experienced family lawyers is reassuring. Call us toll free at 1-877-602-9900.

BC Significantly Unfair Family Property Division

What Does Significantly Unfair Mean and How Do I Prove It?

The new law on BC Significantly Unfair Family Property Division is presenting a challenge to lawyers and judges. Will the judges be more strict in rejecting claims for more than half the assets? The law is clear that the factors that can lead to unequal division are now more numerous but the test to succeed went from proving unfairness to proving significant unfairness. In a nutshell it will be harder to succeed in getting more than half of the family property. One judge has stated that he may not know exactly what significant unfairness means but he knows it when he sees it. BC Significantly Unfair Family Property Division cases  require a thorough analysis of all factors.

Section 95 of the FLA says that the court “may order an unequal division of family property or family debt, or both, if it would be significantly unfair to equally divide family property or family debt, or both.”

Unequal division by order

95  (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide benefits as required under Part 6[Pension Division].

(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:

(a) the duration of the relationship between the spouses;

(b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1)[setting aside agreements respecting property division];

(c) a spouse’s contribution to the career or career potential of the other spouse;

(d) whether family debt was incurred in the normal course of the relationship between the spouses;

(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;

(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i)   substantially reduced the value of family property, or

(ii)   disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

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

(3) The Supreme Court may consider also 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 if, on making a determination respecting spousal support, the objectives of spousal support under section 161[objectives of spousal support] have not been met.

When you have a BC significantly unfair family property division the first thing you need to do is call one of our experienced family law lawyers to find out your rights. We have offices in Vancouver, Surrey, Kelowna and Fort St John BC.

The post BC Significantly Unfair Family Property Division appeared first on MacLean Family Law.

Our MacLean law lawyers handle numerous BC Family Law Act Child Mobility, Move Away and Relocation cases each year. Our new Family Law Act tries to establish a principled approach to dealing with BC Family Law Act Child Mobility, Move Away and Relocation and these rules have been held to differ from our rules for relocation under our Divorce Act. The area is complex and missteps await the unwary. Call one of our experienced BC Family Law Act Child Mobility, Move Away and Relocation lawyers to get a sound strategy to ensure your child’s best interests are protected.

BC Family Law Act Child Mobility, Move Away and Relocation

Moving Away Is Often For Parent’s Reasons Not Child’s

When two separated BC parents live close together their child has the benefit of seeing both parents- often up to equal time. But what happens when because of:

• the need for a new job in a new location;
• a career promotion again to a new location;
• a move to be with a new spouse or for that new spouse’s job;
• a move back to where the parent’s extended family is for support;
• a move back to their country of origin;
• someone wants to move out of spite to put distance between themselves, their child and the spouse they intensely dislike;

one parent wants to move away with the child or children? What happens if one parent wants to move away while leaving the child behind?

MacLean Law Explains BC Family Law Act Child Mobility, Move Away and Relocation Options

Options include, allowing the move, disallowing the move, allowing the parent to move without the child or having both parents and the child move to the new location.

In cases where the move is allowed with the child and the other parent stays behind, the child is in a classic “no win” situation as their time with one of their parents will be seriously curtailed given the distance. Psychologists debate whether relocation is the  single most destructive developmental scenario for a child and what ages for children are best if a move is to be allowed so they suffer the least damage.

The default rule in BC under our new Family Law Act is that a parent, who wants to move away in a child parenting arrangement context, must give 60 days written notice to the other guardians and to people who have contact with the children under an agreement or court order.

This “ moving away” child mobility or relocation notice needs to be given whether you plan to move with the child or not. A court can make an exception to the relocation notice if there is a risk of harm or no contact by the other parent with the child.

If the other guardian opposes the move, they can file an objection notice in court but as of now a person with mere “contact” cannot.

When deciding whether to allow the move, a judge will consider:

• Whether the new plan is so beneficial that it outweighs the disruption to the child and the disruption of the bond with the other parent;
• whether the move is made in “good faith”;
• whether the replacement parenting time plan that will preserve the relationship between the child and the other guardian.

Best Interest Test Is Sole Test To Decide A BC Family Law Act Child Mobility, Move Away and Relocation Case

In short, taking all factors into account for the child psychologically, financially and developmentally is the move in the child’s best interests?

A thorny issue remains as to whether a person who has contact only and who is thus not a presumptive guardian can even oppose the move. Our lawyers believe this difference between parents involved in a long term relationship versus those who were less involved either by choice or because of a controlling spouse will not  likely survive a Charter of Rights challenge.

In short BC Child Mobility, Move Away and Relocation under BC Family Law Act are the toughest cases families, their lawyers, court appointed experts and judges face.

Call our experienced BC Family Law Act Child Mobility, Move Away and Relocation lawyers immediately if you have problems in this area toll free across BC at 1-877-602-9900. We have family law offices in Vancouver, Surrey, Kelowna and Fort St John.

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The Vancouver high income spousal support and BC alimony lawyers at MacLean Law are well aware of the Spousal Support Advisory Guideline High Income Exception provisions for incomes of over $350000 because of Lorne MacLean QC’s precedent setting high income spousal support case in ARJ v ZJ  which set combined child and spousal support at a nearly $30,000 a month.

Lorne MacLean QC Vancouver BC spousal support guideline award and SSAG spousal support guidelines lawyer

Special Vancouver Support Rules for Incomes Above $350000

Vancouver spousal support cases, where the paying spouse’s income is over $350,000 mean the stakes for these BC spousal support cases are as huge as the amounts that can be ordered paid as Vancouver spousal support and Vancouver alimony.

You Can’t Afford A Mistake

In this rarified financial atmosphere it pays a family law client with a high income, or  a separating spouse who has a spouse earning a high income, to hire one of our highly rated senior family law lawyers. You cannot afford to have the wrong spousal support amount or wrong period of spousal support payment awarded. Our Vancouver Spousal Support $350000 Cap Lawyers will make sure your rights are protected.

Vancouver High Income Spousal Support Lawyers SSAG Exceptions Over 350k

The larger stakes at these income levels and the complexities of the individual cases which will often involve Vancouver child as well as Vancouver spousal support mean that the Spousal Support Advisory Guidelines are not absolute above $350,000 income levels for paying spouses. Our Vancouver Spousal Support $350000 Cap Lawyers know the cases that favour departure or application of the SSAG basic rules.

Vancouver Spousal Support and BC Wealthy Lifestyle

The amount of spousal support payable in Vancouver support cases  under the Spousal Support Advisory Guidelines is often set near a level of the prior family lifestyle.Here is an extract from MacLean’s winning case in ARJ:

[44]           In cases where the parties are wealthy, the court can consider lifestyle in determining the wife’s needs for the purposes of spousal support.  If means are available, the appropriate standard of living is a reasonable standard with reference to the marital standard of living: Touwslager v. Touwslager 1992 220 (BC CA), (1992), 63 B.C.L.R. (2d) 247, 9 B.C.A.C. 203.

[45]           Where there are the means available, the payee spouse is entitled to receive spousal support in an amount sufficient to enjoy a level of comfort beyond her basic needs: Hodgkinson v. Hodgkinson, 2006 BCCA 158 , 2006 BCCA 158, 53 B.C.L.R. (4th) 52 at para. 69.

[46]           Where the parties have had a long marriage, the goal of spousal support may be equality of standards of living: Yemchuk v. Yemchuk, 2005 BCCA 406 , 2005 BCCA 406, 44 B.C.L.R. (4th) 77 at para. 50.

[47]           Thus, in the present case, where it appears that the parties enjoyed an affluent lifestyle, the wife is entitled to receive support sufficient to maintain a high level of comfort and a lifestyle on par with her husband.  See also M. (H.R.) v. B(D.M.), 2004 BCSC 147 , 2004 BCSC 147, Kopelow v. Warkentin, 2006 BCCA 271 , 2006 BCCA 271 and Kuznecov v. Kuznecov, 2006 BCSC 1926 , 2006 BCSC 1926. 

[48]           Both parties reviewed in argument the discretionary nature of the spousal support guidelines.  In the circumstances here I see no need to depart from the Guideline amount, and I find that spousal support is payable in the amount of $17714 per month. 

What Do Spousal Support Guidelines Say Is The  Correct High Income Spousal Support Approach?

The following is an extract from the final version of the Vancouver Spousal Support Advisory Guidelines:

11.3 Payor Income Above the $350,000 Ceiling

To repeat, the ceiling is not a “cap” on spousal support, nor does it bar the continued use of the formulas as one method of arriving at an amount in a particular case. The examples below illustrate the operation of the ceiling and some of the issues that arise in cases above the ceiling.

 If the payor earns more than $350,000, e.g. $500,000, a court can decide to go higher or not. Under the with child support formula the operation of the ceiling is complicated by the fact that child support increases as incomes rise above the ceiling. We can suggest two possible approaches for these very high income cases using the with child support formula.

The first approach uses the formula to determine a minimum amount for spousal support, an approach we can call “minimum plus”. A notional calculation would be required to calculate spousal support at the $350,000 ceiling, using the child support payable at the ceiling. This would determine the “minimum” spousal support range. This approach might make more sense where the payor’s income is closer to the ceiling.[100]

The second approach would be one of pure discretion. Once the payor’s income exceeded the ceiling, then there would be no “minimum” for spousal support, just a dollar figure that would take into account the actual amount of child support paid, an amount which can be very large for high income cases. At some point, the large amounts of child support include a component that compensates the recipient spouse for the indirect costs of child-care responsibilities, leaving less need for spousal support to do so. This approach will become more important where the payor’s income is well above the ceiling.

Our Vancouver High Income Spousal Support Lawyers are ready to protect your rights. Contact us now to begin planning your winning support strategy. 604-602-9000 in Vancouver and across BC in Kelowna, Fort St John and Surrey.

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The experienced Vancouver family property lawyers and BC family property division and valuation lawyers at MacLean Law routinely handle medium to high net worth BC family property and British Columbia excluded property claims. In earlier blogs we’ve discussed how BC excluded property is dealt with. Today we will explain how the BC and Vancouver family property division and valuation rules work. Our experienced Vancouver family law lawyers will guide you safely through to a successful post separation life so contact us now.

Vancouver Family Property Lawyers 604-602-9000

Our new Vancouver and BC family property legislation removes the troublesome need to determine how BC family property was used during a marriage. As well as changing the rules for how family property is divided in BC, the new BC Family Law Act property rules extend the new property division rules to couples living in marriage like relationships that have lasted longer than 2 years. It’s critical parties know the starting and ending values for assets they bring into the relationship and the starting values for their excluded property, whether it be a gift, an inheritance or from another source that makes the property excluded property.

The New BC Family Law Property Division Rules

Basically it’s 50/50 of every asset you can think of except excluded assets. Note that even for BC excluded assets the spouses, both married or in a common law marriage like relationship, share the gain on excluded property equally. We  have high lighted the key types of property that are shared:

81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6[Pension Division],

(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

Family property

84 (1) Subject to section 85[excluded property], family property is all real property and personal property as follows:

(a) on the date the spouses separate,

(i)   property that is owned by at least one spouse, or

(ii)   a beneficial interest of at least one spouse in property;

(b) after separation,

(i)   property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or

(ii)   a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.

(2.1) For the purposes of subsection (2) (g), any increase in value of a beneficial interest in property held in a discretionary trust does not include the value of any property received from the trust.

(2) Without limiting subsection (1), family property includes the following:

(a) a share or an interest in a corporation;

(b) an interest in a partnership, an association, an organization, a business or a venture;

(c) property owing to a spouse

(i)   as a refund, including an income tax refund, or

(ii)   in return for the provision of a good or service;

(d) money of a spouse in an account with a financial institution;

(e) a spouse’s entitlement under an annuity, a pension, a retirement savings plan or an income plan;

(f) property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;

(g) the amount by which the value of excluded property has increased since the later of the date

(i)   the relationship between the spouses began, or

(ii)   the excluded property was acquired.

(3) Despite subsection (1) of this section and subject to section 85 (1) (e), family property includes that part of trust property contributed by a spouse to a trust in which

(a) the spouse is a beneficiary, and has a vested interest in that part of the trust property that is not subject to divestment,

(b) the spouse has a power to transfer to himself or herself that part of the trust property, or

(c) the spouse has a power to terminate the trust and, on termination, that part of the trust property reverts to the spouse.

We have some of  the top rated and most senior Vancouver Family Property Lawyers in British Columbia and we would be pleased to meet with you to help develop a plan to discretely separate your family property, excluded property and family debts so you can move forward with confidence to a satisfactory post separation life. Call Lorne MacLean, QC or any one of his top family law associates at 604-602-9000.

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