Family and Divorce

Divorce & Separation

Ending your relationship through separation or divorce is one of life\'s most stressful experiences.

Separation is a simple idea: you must simply start living "separate and apart" from one another, whether under the same roof or in separate homes. For married couples, separation indicates the initial breakdown of your relationship but does not release you from the bonds of your marriage. For unmarried couples, including those who qualify as “spouses” under the Family Law Act, separation is all that is needed to end your relationship.

The date of separation is important, since issues relating to limitation periods and the division of property/debt flow from that date. The law differs depending on if you are a married or unmarried couple. Speak to us for more details.

Divorce is the legal dissolution of a valid marriage. To obtain one, one spouse must sue the other in the Supreme Court, and at least one of you must have been "ordinarily resident" in BC for the preceding year. There must be proof of a "breakdown of the marriage", which can include: living separate and apart for one year, adultery, or cruelty. These are normally straightforward, but sometimes they are not. Regardless, a court will need to make an order that you are divorced.

Contested vs Uncontested Divorce

Because you need a court order to get divorced, it is normal to start a proceeding asking the court for an order on all family law issues relevant to you. These could include orders relating to the care of children, the division of property and debt, and the payment of spousal and/or child support.

Uncontested

If you and your spouse can agree on all the issues between you, then you may file for an “Uncontested Divorce”. For you, this option is probably the least emotionally draining, as well as the most affordable. Provided you meet the basic requirements the law requires, the court is likely to grant your divorce request.

Contested

If you and your spouse continue to fight about custody, property or support issues, then you are on the track of a “Contested Divorce”. Though more costly, a trial is sometimes required if one spouse is being particularly unfair or unreasonable, and the situation calls for the finality of a court ruling.

DIVISION OF PROPERTY

Delta Law Office can help you with family law agreements of all kinds:

Under BC law, spouses generally keep the property that each of them brought into the relationship and share in the things they obtained during their relationship. The same holds true for debt.

We will guide you through the process of valuing your property and identifying which assets and liabilities are most likely to be deemed “included” and “excluded”, for the purposes of dividing your property/debt .

Demanding full financial disclosure, and taking steps where there are shortcomings, Delta Law Office ensures that otherwise divisible family property is not hidden or disposed of. This is a key part of how we help you achieve a fair result.

BC family property division can be obtained either through negotiated agreement or the courts. We will steer you towards the most appropriate path for your unique needs and circumstances.

Family Law Agreements

Delta Law Office can help you with family law agreements of all kinds:

You’ve separated from your spouse? That’s unfortunate, but perhaps it was necessary. Whether you were married or unmarried, now is the time to consult a lawyer. we can help you negotiate a comprehensive agreement dealing fairly with all key issues between you: care of your children, the division of property and debt, the payment of child or spousal support, and more. The main benefit of this approach is that you (not a judge) have significant control of the process and the end result.

You’re moving in together? You should know that once you and your boyfriend/girlfriend have lived together for 2 years or more, you will be deemed to be “spouses” under BC law. This means you will have many of the same rights and responsibilities as a married couple unless you have an agreement in place that helps define your arrangement on your own terms.

You’re getting married? While most hope for a lifetime together, you may want to ensure that your rights and property are fully protected, if you and your spouse later split up.

Spousal and Child Support

SPOUSAL SUPPORT

The issue of spousal support raises three questions: (1) are you entitled to claim (or obliged to pay) it; (2) what is the proper amount; and (3) how long should it be paid for?

Generally, an order or agreement calling for the payment of spousal support is proper where: 1) one spouse has suffered economic loss or hardship due to decisions made during the relationship or its end; 2) a contract exists between the spouses requiring spousal support to be paid; or 3) one spouse is in financial need after separation and the other spouse is able to pay from his/her disposable income.

The questions of ‘how much’ and ‘for how long’ are complex, depend on whether you have children or not, and are best determined after we consider your unique facts. Whether you need support or are facing a request for support, we can help you understand your rights and obligations, as well as your options.

CHILD SUPPORT

f, after separating, you are the primary parent of and caregiver for your children, you most likely are entitled to receive child support from your spouse. Conversely, if you are not the main caregiver after separation, you will likely have to pay towards the support of your child(ren).

The amount will be determined by reference to the federal Child Support Guidelines. Generally, relevant factors include the income of the paying parent and the number of children. ‘Special expenses’ such as day care, medical or dental bills and ‘extraordinary expenses’ like private school first must be identified and then, if they qualify, are often shared with your spouse in the same proportion as your incomes.

There are several exceptions to the general rule outlined above. We will help you pay or receive a fair and proper amount of child support.

CHILD CUSTODY & ACCESS

Central to many family law disputes is determining who the children should live and spend time with, how they will be raised, and who will be responsible for important decisions affecting their lives.

The federal Divorce Act speaks of ‘custody’ and ‘access’ when dealing with this issue. Recently-enacted BC law speaks of ‘guardianship’, ‘parental responsibilities’ and ‘parenting time’. Both sets of law emphasize “the best interests of the children”.

Consult with Delta Law Office to see what your rights, obligations and privileges may be, when viewed through the lens of what is best for your child(ren).

CHILD PROTECTION

f a child\'s safety is at risk, the “Ministry of Children and Family Development” must consider it and investigate. If the child protection concern is significant, the Ministry may decide to supervise your child in your home or, even worse, take your child from you for a period of time. This has to be one of the most upsetting situations imaginable, especially since the Ministry seems to have all the control.

We will work to ensure you are treated fairly by the Ministry in this process, to have fair supervision terms, and, wherever appropriate, to have your children returned as soon as possible.

PROTECTION ORDERS

Sometimes, people can be threatened or attacked. The same goes for property, which can be unfairly disposed of or dissipated. In either case, if you fear for the safety of a person or of an asset, there are immediate steps that can be taken in the form of a protection order.

We will listen with sensitivity and work zealously to protect you, your loved ones, or your property.

Delta Law Office provides a full range of family law services, from divorce to custody to property division and everything in between. Please call to book an appointment with one of our Family Law professionals.

Our Dedicated Team

Our Team works together closely to provide you with assistance on any questions you may have throughout the process. There is always someone available to assist you with your case.

Krista Singh

Legal Admin Assistant

Frequently Asked Questions

My spouse and I recently separated and I am interested in an out of court option to help us resolve the issues we cannot agree upon. One of the options I have heard about is Collaborative Divorce, what is it?

Collaborative Divorce is a dispute resolution approach that is available to separated spouses to resolve disputes that arise after a separation, such as parenting arrangements, child support, spousal support, and division of property and debt. All lawyers who practice Collaborative Divorce law must have completed a minimum amount of mandatory training focused on mediation and Collaborative Divorce skills.

In addition to the two lawyers that represent each spouse, the process is dependent upon the specialized skills of divorce coaches and, when required, child and financial specialists. Although some people worry about the costs of adding specialists to the dispute resolution process, the effect is often the opposite. Often they have lower hourly rates than lawyers and can help the parties avoid emotionally driven decisions that so often prolong the process and increase the legal fees.

The Collaborative Law approach is founded upon an agreement that the parties will not engage the court process and will provide full financial disclosure. The parties then participate in meetings with their lawyers and specialists to resolve disputes in a respectful way The process allows parties to come up with an agreement that suits each family’s needs.

My spouse and I are separating after 10 years of marriage and we have two children. I want to draft my own separation agreement using an outline I found online, will it be valid?

While a separation agreement is not required to be drafted or signed by a lawyer to be valid, do- it-yourself separation agreements are risky. It is very rare that a self drafted separation agreement will contain all the necessary clauses and waivers to effect a division of family property and debt or to successfully implement a desired parenting arrangement. This can lead to problems enforcing the agreement later on if your spouse does not follow what was agreed to. As well, if the child support and parenting sections are insufficient, this may delay or prevent you from obtaining a divorce until it is rectified. This is because you are required to prove that adequate arrangements have been made for the children before a divorce will be granted It is important that you and your spouse get independent legal advice on any separation agreement you sign so that you are informed of your rights and understand the agreement. Independent legal advice can protect you in the future should your spouse try and vary what is in the agreement.

I am moving in with my partner, what should I know about entering into a cohabitation agreement?

On March 18, 2013 the Family Law Act replaced the current Family Relations Act resulting in significant changes to family law in British Columbia. One of the biggest changes is that common law couples will be governed by the same property division as married couples upon the breakdown of their relationship. Common law couples, for the purposes of property division in the Family Law Act, include two people who have lived in a marriage like relationship for at least two years. The presumption is that upon a relationship breakdown each partner will be entitled to one half of any ‘family property’ and increases in value of ‘excluded property’. If you want to set out a different arrangement for property division then a cohabitation agreement is the way to do so. A cohabitation agreement can also include details of how each party will contribute financially during the relationship and the terms of spousal support, if any, should the relationship breakdown. Every cohabitation agreement needs to be specific to your situation so it is essential that you consult a lawyer for advice before drafting and signing any agreements.

My ex stopped paying monthly child support for our 10 year old child, is there anything I can do about it?

The answer depends on whether you already have a separation agreement or court order that requires him/her to pay child support. If you do, you can register with the Family Maintenance Enforcement Program (FMEP) and they will monitor and enforce payments. There does not have to be a history of late or missed payments in order to register. The FMEP can also help collect the arrears that are outstanding at the time of registration. Sometimes the wording of your agreement or order is insufficient for the FMEP to enforce the terms and you will need to take extra steps to obtain a revised order or agreement with adequate terminology. You should consult a lawyer for legal advice if you have questions about the wording.

If you do not have a child support order or agreement then the FMEP will not be able to help you. I recommend that you speak with a lawyer to discuss your entitlement to child support, the possibility of your ex paying retroactive support, and the process of obtaining a court order or agreement.

How do I get a divorce? Already have a separation agreement.

In order to get a divorce you must start a court application by filing a Notice of Family Claim in the Supreme Court of British Columbia. You can apply for a divorce on the basis that you have lived separate and apart for at least one year. Your spouse must be served with the filed application and he/she has 30 days to file a Response. If no Response is filed, or your spouse consents, the divorce can proceed by way of a desk order application upon filing the proper documentation. However, it can take several weeks to process. A divorce is official 31 days after the date the judge signs the divorce order.

There are several components to a divorce application and the forms must be filled out correctly in order to be successful. I recommend that you consult a lawyer for legal advice about your specific circumstances and to make sure everything all your forms are in order.

My spouse and I recently separated and we did not have a marriage agreement. Am I entitled to spousal support and if so, how much will I receive?

Whether or not you are entitled to spousal support will depend on several factors, including the roles that you and your partner each took on during the relationship. If you are not currently employed, your ability to earn income and become self supporting will be examined. A difference in incomes does not automatically result in an entitlement to spousal support.

If it is established that you are entitled to spousal support, the amount and duration of support is then determined. The Spousal Support Advisory Guidelines are generally used to calculate a range for the amount and duration of support. Where you fall on both ranges is determined by your specific situation. The Guidelines take into account several factors including each spouse’s income, your ages, the length of your relationship and whether there are children for which child support is payable. Depending on your situation spousal support may be time limited or reviewed after a specific event or set period of time.

I suggest you contact a lawyer for legal advice regarding your potential claim in order to obtain an opinion based on your specific circumstances.

Personal Injury: To Settle or Sue?

You have two years from the date of your injury to decide. Once you settle your case you cannot reopen it if your problems come back or new ones arise. Patience is a virtue and time is money; generally the longer you wait for settlement, the better settlement will be. Your lawyer will get all the medical and income information available and start negotiations with Insurance of British Columbia. Some cases settle quickly and some can be complicated and can take months or even years between offers. If you overvalue your case it will take longer to reach agreement. Sometimes people do not want to let go of the fight, regardless of the consequences. But settlement can bring relief and an improved emotional state. If you have to sue, be prepared to attend an Examination for Discovery where you will be questioned extensively about your medical history and your life. If you and Insurance of British Columbia see your case very differently, then you may go to trial to have a judge or jury decide. Most cases settle because the costs, risks and emotional upheaval of a trial are too much for many people. There is no easy answer to the question “settle or sue”; as you proceed you must continually reevaluate that question with professional guidance.