University Costs and Child Support: Take Good Notes

The Divorce Act in Canada defines “child of the marriage” to be a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. This causes some confusion among parents (and their children) with child support Orders or Agreements who have grown kids (over age 19 in BC) attending of university and college. When do parents stop paying “child support” under the Order or Agreement?  The Child Support Guidelines provide a guide: the CSG specifies that there is a different scheme to calculate “child” support at age 19.  In summary: the child over age 19 has to chip in and contribute to the extent that he or she can reasonably do so from scholarships, employment, bursaries. Support is a trio of shared responsibility, no longer just the role/burden of mom and dad.  Case law specifies that parents are – generally speaking – responsible for assisting children to pay for post-secondary education costs that are reasonable. What is “Reasonable” is the key question and there are many factors to consider: a cost that is affordable for the family; that will result in a paying job or career; that the student is suited for academically; that the parents planned and agreed to during their marriage;  that the student is attending at or near full-time.  Post-graduate degrees and living on campus and away from home are unique  factors: some parents are court Ordered to pay for these costs, depending on the family history for paying and agreeing to fund such high costs. Parents who are (a) separated and (b) financially successful medical doctors with (c) a child accepted into medical school – are quite likely to be court Ordered to assist to pay for their child’s medical degree.  Adult children (over age 19 in BC) can sue their parents for “support” under the Family Relations Act to obtain the support that they require to complete their education.  Parents can sue each other under that same Act and/or the Divorce Act to obtain child support and special expenses to pay education costs. When does child support stop? ANSWER: When a child is no longer a “dependant” of the parents. The Divorce Act definition of “child of the marriage” is a major factor in determining the answer.

BC Lifestyler Article – Whahooo!

In the New Year many people resolve to make new beginnings.  For some, this may include a life without their spouse. This was the theme of my magazine article in BC Lifestyler. I don’t use my blog for self-aggrandisment (spell check needed!) BUT>>>>> How often does this happen!!  We hired photographers: they turned Mark”s office into a photo studio for the day. Kevin and Adam of “Kev and Adam” Photography climbed out on the window ledge (more like a small balcony)  and hung sheets over the window to filter the light. I recommend these guys for their photography. You can see for yourself on our website and in the magazine.  Lights, camera, hold that pose. Really. I did THAT. When the photos were done, we sat down and wrote most of our article – during a trial in session in the same week. It was CRAZY here. Please – if you like – follow the link to my feature article in the BC Globe & Mail Lifestyler magazine for your review: http://www.turnit.com/index.php/ci_id/88843 from page 116 to 118.  WHAHOO!!!  Thank you to BC Lifestyler Magazine and Evolusent writers and staff.

International Children and Custody: Non-Removal Order

This post refers to international child abduction and is to raise awareness of the need for prevention.  If you or your separated/divorced spouse have a child and DO NOT HAVE ANY COURT ORDERS ABOUT CHILD CUSTODY and one spouse has dual citizenship or citizenship in another country (and financial/family resources in that other country), you (and your spouse) are exposed to the risk that (you or) your spouse can leave the country of residence with the child without (his/her or) your knowledge or consent and not return the child. If your spouse removes your child from your country of residence and refuses to return the child, you are going to be put to considerable expense and loseparenting time with your child to get your child returned to your home jurisdiction (if you cannot or don’t want to relocate to the country where your spouse has newly taken up residence). The fact is: you may not be able to retrieve your child easily or quickly. This outcome does happen. To prevent such a situation, you need child custody terms in a court Order (at time of separation) and (if your spouse is subtly or directly indicating that he/she is may leave with the child without your consent) you may need to obtain an emergency court Order that your spouse is not to remove the child from your home jurisdiction. You can (AND SHOULD) get the police involved in an emergency and may need to get a judge out of bed to make an emergency Order if the facts support that there is an emergency that requires an immediate court Order to protect a child.  Obtain this Non-Removal Order (and sole or joint custody Order) as a precaution (secure the child first, as a priority!). Then take additional steps: file the non-removal Order with the embassy or consulate of your spouse’s citizenship country: this will assist to prevent the issuance of a travel VISA (perhaps) and file it with Border Services and the passport office. JUST THE FACT OF HAVING A NON-REMOVAL ORDER (and sole or joint custody Order) MAY NOT BE ENOUGH TO STOP THE CHILD’S REMOVAL. The topic of getting the child back after-the-fact is complex and must be left to another post. Take immediate steps: contact all logical resources if you have reasonable and probable grounds to believe that your spouse might leave the jurisdiction with your child and not return the child: Get advice and assistance from all logical resources: police, lawyer, court, government offices + services. The sooner you take action, the better. THIS POST IS NOT REFERRING TO SITUATIONS OF CASUAL FAMILY VACATIONS OR FAMILY EMERGENCIES OUT-OF-COUNTRY (with the child) for legitimate planned purposes pre-arranged between parents. It refers to only child abduction matters.

Divorce: Legal Separation

Common misconception: It is NOT true that mere passage of time separate and apart from your married spouse results in you being “divorced.” You cannot get divorced via mere passage of time. HOW TO SEPARATE: You can get “separated” by just walking out the door (into a separate residence or into a basement or bedroom in the same residence as your spouse) and saying “Honey, I am separating from you today: I have formed a persistent intention to end this marriage relationship and will no longer live in a marriage-like relationship with you.”  You then stay separate.  You should then commence the process of division of marriage/family assets and debts. (Some people start dividing assets and debts before separation but that is another topic.) Put your terms of separation in a written separation agreement with the assistance of a family lawyer or mediator and/or financial advisor.  This is commonly understood to be a “legal separation.” You should file the written Agreement in Court as a permanent record (and for enforcing it). DIVORCE IS NOT THE SAME AS MERE SEPARATION! Divorce is accomplished by “suing for divorce” in the local Court where you “ordinarily” reside. PERIOD OF SEPARATION: You will have to stay separate and apart for the statutorily required time period to qualify for a divorce Order: in Canada it is 1-year separate and apart. In some US States, the time period is 6-months and in others it is reputed to be as little as 3-months apart.  PROOF OF MARRIAGE: You will need official proof of marriage from the city/town/province/state….. where you got married. You have to prove your marriage was “legal” in order to get a “legal” divorce. Judges do not have to (and will refuse to) pronounce you “legally divorced” if you were not legally married.  This is the conundrum of same-sex couples who ordinarily reside in a jurisdiction that does not recognize same-sex marriages as being legal. Same-sex couples have to reside in a place (“jurisdiction) that recongnizes their marriage as legally binding in order to get legally divorced there.  GROUNDS FOR DIVORCE: There is an exception to the requirement for a period of separation before you can divorce: if you have other fault-based grounds for divorce such as abuse/cruelty or the marriage was a nullity (not ‘legal’ due to several potential reasons) you may get a divorce Order sooner than via “no fault” divorce. In such fault-based divorce cases: consult an experienced family law lawyer for advice as these fault-based cases are rarely simple.   BOTTOM LINE: Except for cases with fault-based grounds for divorce, a period of “separation” is required before you can obtain a Divorce Order. TO BE LEGALLY DIVORCED: A DIVORCE ORDER IS ALWAYS REQUIRED. The longer you avoid getting that divorce order, the longer you are encumbered with “married spouse” rights and liabilities to each other.

The Separation Decision

If you are thinking of separating from your  spouse or partner, it is likely that he or she is thinking the same thing. The majority of separations are amicable, meaning relatively cooperative. For many people,the fact of separation is not as difficult as the decision to separate. The reason it is hard is you forsee the negative consequences: hurt, angry spouse and family; financial hardship and uncertainty; packing and moving . . . (So focus on the positive consequences.) It is a logical cost-benefit analysis: list the positives and negatives of staying and of leaving. Then apply the passage of time test: Where will I be in 2 to 5 years (if I stay).  Think of all the time spent working on the relationship: How is that working for you? Why did you get into the relationship? Why are you staying (be realistic). I recommend NOT asking your friends (who always disliked your spouse). Instead, consider whether or not your (relationship with your) spouse is the reason you no longer have friends. Breaking up is difficult but staying together can be worse, with no end date in sight. Perhaps it is of some comfort to know that there were 71,269 divorces in Canada in 2005. By contrast, there were 146,242 marriages in Canada in 2004. (Source: Statistics Canada)

New Family Law Act coming to BC

The Family Relations Act of BC is to be repealed in 2012 according to legislature sources. There are more common law relationships than marriages in BC and common law relationships tend to end sooner than marriages. Often, common law couples are sensible about maintaining separate property. It is the longer-term common law relationships in which the couple have intermingled finances and assets that are the focus of some major changes to the family law. Common law couples will gain some rights in property after a two-year anniversary date and sooner if they have a child together. The value of propery brought into the relationship is excluded from being shared. In current B.C. family law, one is better protected by having no cohabitation agreement. This advice will change when the new Act is in effect. Common law couples will be better off, and base advised, to have even a simple written agreement, witnessed and dated by two independant adult witness. The litmus test for enforcablity of an Agreement will be legality, fairness, and full financial disclosure. Upcoming area of law: full disclosure of medical issues that can impact the relationship and, if known, might reasonably be forseen as impacting the decion to enter the agreement. COMMON LAW COUPLES: GET YOUR LEGAL AFFAIRS IN ORDER – GET A COHABITATION AGREEMENT.

BOOT CAMP BASICS About Spousal Support

Spousal support is critically important and often not discussed because of common misconceptions or a level of discomfort about the topic.  You need to know the “boot camp” basic facts about spousal support when considering or negotiating a prenuptial, cohabitation or a separation agreement (or making a lawsuit claim for spousal support).  You and your lawyer need to consider and discuss the following points and facts.  You must seek advice of an experienced family law lawyer in your jurisdiction.  Be aware that your jurisdiction may have time-limited rights to apply to court for an order for support and if that time limit is passed, you could be without a legal remedy. This fact underscores the need to seek legal advice sooner rather than later.

x        Support is not gender based: Women pay support too. You or your spouse may be ordered to pay spousal support (“support”) depending only on the circumstances of your relationship, before and after your separation.  A difference in income and an absence from the work force during the relationship, such as to perform child care and housework, are hallmarks of a spouse’s support entitlement but do not by themselves predetermine that support will be payable.

x        You may be liable to pay, or have a right to receive, support even if you did not have children during your relationship or if you did not stay home to raise the children.

x        Support may be paid for a limited term, long-term or in a lump sum.   Lump sum spousal support is pro-rated for the facts that: (a) it is not usually included as taxable income of the recipient, and (b) the lump sum can be invested to earn income, and (c) the entire sum is paid up front, without the risk of the payor’s future non-payment due to death or disability.

x        A person’s right to receive support is legislated in both the B.C. Family Relations Act and the federal Divorce Act.  The Divorce Act applies only to married spouses and contains no specified time limit within which a person has to make a claim for support. The Family Relations Act does contain a specified time-limit within which a separated spouse must commence their support claim or lose their rights to do so but there are some (rarely applied) exceptions. 

x        Both of the B.C. Family Relations Act and the federal Divorce Act list specific factors and criteria that a court (judge or master in BC) must take into consideration when you ask the court to make an Order for support. A failure by the court to apply the legislated factors and criteria may result in the Court of Appeal over-turning the judge’s or master’s decision.

x        Neither the B.C. Family Relations Act nor the federal Divorce Act provide a mandate or guarantee that you will either receive or pay support to or from your spouse.  Both also mandate a recipient spouse’s duty to be self-sufficient and self-supporting, to the extent possible in the absence of their having recent work experience, schooling, training, or if she or he has a medical or other disability that impacts employment income.  The reason for a spouse’s non-employment or under-employment (and need for support) need not be directly connected with the relationship or marriage.

x        The recipient spouse must establish his or her “right” or claim to support either by support agreement (in a separation agreement) or by a court order.  If by court order, then he or she will have to “win” either or both of an interim hearing and a Trial at which the presiding judge decides that one spouse has the means to pay support and the other has the financial need or that there is a compensatory or other judicial reason to award support.  Financial need is not the only basis on which support is awarded.

x        At trial, a person’s right to receive (or duty to pay) support is determined by the presiding judge. You and your lawyer should be able to predetermine the outcome with reasonable certainty using similar fact decisions from other reported trial decisions, including previous decisions of the judge assigned to your trial.

x        It is possible (uniquely so in B.C. as compared to other jurisdictions) to predict with reasonable certainty the approximate range of support amount and duration of support (ranging from a few months to years to an indefinite time period) using prior similar fact case decisions and by using the industry standard support calculations software that is widely accepted by judges and masters in B.C.

x        A court order for support creates legal rights and remedies in favour of the recipient spouse.  If the Order is ignored by the payor spouse, he or she may face legal consequences from their contempt of court and support arrears.

x        Each province in Canada has a support enforcement program (such as BC’s Family Maintenance Enforcement Program or “FMEP”) operated by the provincial government that requires the payor or recipient to enroll in the program, by filing a court-certified copy of the court Order or the court-filed Agreement.  The payor is then required to make payments through the support enforcement program, or risk serious repercussions that may include one or more of the following: garnishment of pay cheques, attachment of wages and tax return refunds, suspension of driver’s licence and seizure of passport.

x        A recipient spouse is obliged by legislation (in both the B.C. Family Relations Act and the federal Divorce Act) to make reasonable efforts to become self-supporting within a reasonable period of time after divorce, dissolution of marriage or legal separation.  The consequences of malingering are much less severe than the legal consequences of a payor’s non-payment of support. Generally, the payor makes repeated applications to court to reduce or cancel the support Order terms and each application will meet with varied degrees of success, depending on all facts in evidence.  The court may make a “step-down” order by which the support payments decrease over time without need for the payor to return to court repeatedly. This requires that the recipient be self-sufficient within a forseeable time frame with a reasonable degree of certainty that he or she will achieve a livable level of income from employment or other sources such as an inheritance or via remarriage to an employed spouse who supports him or her.

x        A spouse may agree to waive or release his or her claims for support and if the waiver and release is contained in a court Order, then there is reduced risk of either spouse successfully applying to court to re-open the court Order and obtain support at a later date.  However, it is always possible to successfully apply to court to re-open the court Order in the case of married spouses, proceeding under the federal Divorce Act, which has no specified time limits for support applications. 

NOTE: You can contract out of spousal support but you cannot “bargain away” or waive and release your child support obligations because child support is the right of the child, and the law in BC protects child’s rights vigorously.

x        Support is taxable income in the hands of the recipient and a tax deduction to the payor spouse.  The recipient must pre-determine his or her tax liability associated with the support payments each year and is advised to set aside funds to pay the income taxes due each year to avoid costly income tax debt with penalties plus interest.

x        Lawyers, arbitrators, judges and masters are required to consider the following factors and criteria when deciding whether a person is to receive (or pay) support and if so, at what amount and for how long a time:

ü  Age of both persons (as directly relevant to employment)

ü  Health of both persons

ü  Education of both persons

ü  Income of both persons (and of new spouses or partners)

ü  Skills and employability of both persons (and of new spouses or partners)

ü  Assets or property received or owned of both persons (before and during the relationship) and the potential income that the assets or property do or may generate, such as rental revenue

ü  Alternative sources of income including inheritance, windfall such as a lottery win, or from a new spouse that is supporting the recipient

ü  Children’s ages and special needs and the need to reduce employment to care for the children

ü  Length of the marriage or cohabitation

ü  Emotional and physical fallout from the separation that impedes employment (that must be medically substantiated by expert’s report)

ü  Marital or cohabitation standard of living or lifestyle (although the courts are pragmatic and accept that most people experience a reduction in standard of living as a result of separation and the resulting division of their family income and assets)

ü  Division of assets: will the assets received by the recipient generate income, and if so, will that be sufficient (it seldom is sufficient).

x        Lawsuits are expensive and stressful and not the ideal solution to disagreements about support. Consider alternatives such as mediation, arbitration and negotiation.

x        Full and frank disclosure of financial records and documents is essential to determine the issue of support amount, duration and entitlement. “Show me the money” is the catch phrase for financial disclosure: you should not bargain in bad faith and must avoid undue pressure or duress. Either of these could result in your agreement or court order being set aside by a court at a later date.

  This article is not legal or financial advice. You should contact a lawyer in your jurisdiction to discuss your circumstances and the applicable law and potential outcome. If you don’t do so, you risk loss of your legal rights.

Child Custody in Court

Child custody in court. It’s truly awful. It is a tough situation to be in. No one can take the burden on for you, the parent or grandparent. Ultimately, do the right thing. And stick together with friends and family for support. End of Comment.

Restraining Orders: “Danger, Danger!”

 Restraining orders: danger, danger: exercise extreme caution!  The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 defines and limits the use of personal restraining orders in B.C. family law cases. This is a useful decision in that it provides a deterrent against the improper application of section 37 of the FRA by litigants who are apprehensive or uneasy about their former spouse’s communications or contact.  Restraining orders have their use and are needed when the parties require a “cooling off” period with any direct or indirect contact between them as tempers run over the boiling point.

Section 37 of the FRA contains its own legal threshold test.  The court has to be satisfied on a balance of probabilities that there is reason to conclude on the facts that one party is unduly “molesting, annoying, harassing, . . .” the other party.  Per this legal test, the impugned conduct is demonstrated (in affidavit evidence) to be extreme and beyond the norm for newly-separated spouses with infant children. The section is worded as follows:

On application, a court may  (a) make an order restraining any person from molesting, annoying, harassing, communicating or attempting to molest, annoy, harass or communicate with the applicant or a child in the lawful custody of the applicant or both the applicant and a child, and (b) require a person named in an order under paragraph (a) (i)  to enter into a recognizance, with or without sureties, or to post a bond, and (ii)  to report to the court or a person designated by the court, at the times and places and for the period of time the court directs.

My concern about (misuse of) restraining orders in some cases is that such orders give extra leverage to one party when that leverage is not always justified on the facts. It is a “big stick” in the wrong hands, subject to abuse of the privilege extended to the non-restrained party.  Restraining orders can cause a case with good settlement prospects to reverse into a high conflict case in, for example, cases in which the restraining order is not required but is obtained on either false grounds or very low threshold facts. The point at which the restraining order is made can be the point of no return: the restrained party (assuming restrained without real justification) feels huge insult and betrayal, resulting in further reducing levels of trust between spouses. 

Restraining orders can tip the child custodial balance in favour of the spouse who has the children if that spouse also has a “no contact” order under section 37 FRA: that spouse can rely on the “no contact” order to deny access with near impunity when there is no court order specifying the children’s access schedule with the other parent who cannot make contact to arrange access. The situation gives the non-restrained parent much leeway and leverage that is not the intended result of section 37 FRA.

Such orders arise from section 37 of the B.C. Family Relations Act (“FRA”) and are similar to a “peace bond” order under the Canadian Criminal Code Section 810: see Regina v. P.A.O. 2002 BCPC 0560 for comments on this point by the Court in an interesting case that contrasts the “peace bond” type order with a section 37 FRA restraining order.  The legal test is much the same and the legal effect is also similar except that one starts in criminal court and this is an important difference: criminal proceedings can result in criminal charges that last a lifetime as a stigma and impediment to employment prospects and even border crossings.  Civil restraining orders don’t have a life-long impact but can be an impediment to border crossings because these orders are registered and show up on the Canadian police information database (aka “CPIC”) and show up at USA-Canada border crossings.  This can result in impeding employment prospects and immense anger and embarrassment as a vacation is ruined. Neither results are intended by section 37 FRA but these do occur because these restraining orders are registered and are required to be registered on the assumption that there are valid and substantial reasons to protect one party.

The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 says it all in its decision as follows (this quote is a good explanation of the legal grounds and test):

[33] A restraining order under s. 37 of the FRA is a discretionary order, but there must be compelling reasons to invoke the court’s discretion. The most obvious compelling reasons exist in circumstances involving conduct that gives rise to a realistic risk of physical harm to a spouse or a child, but compelling reasons also exist when other forms of harassment, molesting or annoying conduct unreasonably impinge on the emotional or mental well being of a spouse or child, or simply represent an unacceptable interference with the normal daily life of the applicant in the opinion of the court, applying societal standards of decency. There is naturally a stigma associated with a court having deemed it necessary to restrain a person’s behaviour towards another by an order, so the court must, at the lower end of the spectrum, guard against overuse of the discretion, while at the same time enforce the appropriate standards of decency.

[34] The court is of course concerned with subjectively-held fears and apprehensions on the part of an applicant, and the particular emotional vulnerability of individual parties is a material and relevant factor. However, the court is not bound to accept and agree with the subjective perceptions of an applicant, any more than it is bound to accept those of a respondent. Where threats have been subjectively exaggerated, the court may find an absence of compelling reasons to grant a unilateral restraining order. (See: L.T. v. M.T. 2006 BCSC 965, for a recent example of that approach.)                                  

[35] Where the court is unable to tell where the truth lies, it will decline to exercise its discretion to grant a restraining order. (See: B(J.R.) v. B(D.J.) 2005 BCSC 10 for a recent example of that approach.) [END QUOTE]

My comment: This decision sets out a threshold test that is supplemental and interpretive of section 37 FRA that will be of much use to us in our task of family law.

Guardianship Rights of Parents

The term “guardianship” is unique to British Columbia family law. It is often confused with “custody”.  The difference between custody and guardianship is very important to know and understand: a parent can lose this important decision-making right by unwittingly agreeing to “sole guardianship” in a separation or divorce order or agreement. It is easy to give away these rights and very difficult to get them back again through Court applications and orders.

Guardianship was historically a right of non-parental adults given legal responsibility over infants and women.  Guardianship is a carry-forward law that existed before B.C. joined Canada (pre-Confederation) and before women had legal rights as adult people.  The B.C. government rolled all “guardianship” law into uniform legislation without first distinguishing between parental (i.e: custodial) rights and non-parental rights.  That early family law became present day Family Relations Act. Guardianship is defined and distinguished from “custody” in the BC Supreme Court case of Wong v. Yeung  2000 BCSC 1536: see paragraphs 7, 8, 9 in particular.  I recommend this case for reading by lawyers and parents because it contains a good discussion of difference between custody and guardianship. The court in Spiers v Spiers 1995 CanLii 2945 (BCSC) defines custody in general terms at paragraph 22: “Custody under the Divorce Act covers the whole bundle of rights defined in its definition as “care, upbringing and every other incident of custody.” A final order for joint custody under the Divorce Act precludes an order for sole guardianship under the Family Relations Act as the Divorce Act takes priority: the custodial “bundle of rights” under the Divorce Act includes the same bundle of rights as “guardianship” under the BC Family Relations Act. If one party in BC is awarded sole guardianship (interim or final) without any narrowing of the scope of “guardianship” rights given under that Order, that party will have control over all aspects of raising the child to the exclusion of the other parent.  Such an Order ought to be made only in a case in which the Court finds as a fact that the non-guardianship parent has proven to be disinterested or incapable of proper parenting. As an alternative to such an Order in the early stages of a family law lawsuit, the Court ought to make no Order for interim guardianship or at most apply its parens patriae jurisdiction and order interim joint guardianship “without prejudice” to the final determination. At the final Order stage, there ought to be sufficient evidence to assist the Court to make an informed decision on custody and guardianship. In the absence of such evidence, the Court has no alternative but to use caution and discretion.

The Court has the authority to order on its own initiative (i.e: without anyone asking for this) that a third party prepare a report for the Court about custody and access: section 15 of the Family Relations Act.