Family Matters with Justice Harvey Brownstone

Breaking Up

Thu, 22 Nov 2012 00:12:00 GMT

One of our episodes next season will be on the topic of “Breaking Up” and will address the law that governs what happens after the end of a marriage or common law relationship. The following is an overview of the topic.

When a marriage or a common law relationship is ending, both parties carry certain legal rights and obligations that assist in governing the family law issues that can arise in these cases. Particular rules and guidelines established in provincial and federal legislation try to enforce fair and equitable solutions to difficult issues that may arise out of such cases, such as determining child custody or spousal support.

It is important to note that the law in this area can be complex, particularly regarding the division of family assets, and it is generally difficult to proceed without seeking legal advice even if attempting to reach an agreement outside of a trial.

In British Columbia, the law governing divorce, separation, and the dissolution of common law relationships is comprised of two statutes: the provincial Family Relations Act and the federal Divorce Act. Typically, the issues that might arise in the case of divorce or the ending of a common law relationship are the division of family property, spousal support, child support and child custody. These issues are governed by the two statutes noted above.

Though Canadian law considers common law relationships and marriages differently, when the relationship ends common law partners carry many of the same rights and obligations that married people do when facing a divorce with some note-worthy exceptions.

An important area where common law relationships differ from marriages is in the division of family assets after the end of the partnership.

The Division of Family Assets

The division of family assets after a divorce is governed by the Family Relations Act. A family asset is defined as property “ordinarily used for a family purpose”, which focuses on how the property was used as opposed to the original purchaser or owner. Typical family assets are things like the family home and family car.

As a general rule, the law dictates an equal, 50/50 division of family assets. Though exceptions may exist in extenuating circumstances, there is a strong presumption for equal division. Pre-nuptial agreements or consent orders can stipulate an unequal division of assets in the case of a divorce, though the courts can find even these to be unfair if circumstances significantly change.

Property rights are different for those in common law relationships, and if the relationship ends, there is no automatic right to an equal division of property unless a cohabitation agreement was previously signed. Instead, partners typically each take the assets in their own names, sharing equal interest only in assets owned together. If one partner contributed to the purchase of another’s asset, they may claim for an interest of it but they will have to prove that this contribution did not constitute a gift. If dividing property in this fashion will result in a greatly unfair result, the partner who was treated unfairly can attempt to make a claim for an unjust enrichment but the process is difficult and expensive.

Spousal Support, Child Support and Child Custody

Under the Family Relations Act, both married and common-law couples can apply for spousal support in the case of a divorce. Spousal support is money paid by one partner to assist the other partner to meet their financial needs after the relationship ends. In order to apply for spousal support, common law partners must have been living together as a couple for at least two years and apply for the support within one year after separation. There is no similar time limit on married couples to file for spousal support.

Child support is payable by anyone who is a biological or adoptive parent, regardless of their relationship with the other parent. Child support is money paid by one parent to the other for the financial well-being of the child. Typically, the parent who has the child in their care less will pay child support to the parent who has the child more of the time.

The law governing child custody is again the same for both married and common-law couples. In deciding custody, the court always seeks to act in the best interests of the child. Different forms of custody arrangements include shared custody, sole custody, and split custody. Custody includes a consideration of both living arrangements for the child as well as how to decide which parent may make major decisions regarding the child.

Legal Approaches to Addressing these Issues

There are typically three legal approaches to addressing these issues. First, both partners can sign a separation agreement, which will dictate the terms of the separation in regards to the above issues and is legally binding if filed with the court. Secondly, partners can pursue non-court dispute resolution alternatives such as mediation or negotiation to come to an agreement. These can take place with or without lawyers. Lastly, and most infrequently, partners can take each other to court to have a judge rule in the case of a contested divorce. This is generally a time-consuming, expensive option and can put additional stress on the parties involved.

Shari Willis is a J.D. Candidate at the University of Victoria Law School. She completed her B.A. at Simon Fraser University in 2010 with a major in Women's, Gender, and Sexuality Studies and an extended minor in English. Shari formerly worked as a support worker and was active in campaigns and initiatives dedicated to ending violence against women.

The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice.

Spousal Support

Mon, 19 Nov 2012 16:19:12 GMT

Next season Family Matters will be dedicating an episode to spousal support. Spousal support is one of the most contested issues in separation and divorce proceedings in Canada. While each province has its own legislation to deal with common law spouses and married couples that separate but do not divorce, the dominating piece of legislation is the federal Divorce Act. The following includes some of my reflections when exploring the topic of spousal support.

After doing some background research on spousal support, I was surprised at how many goals and purposes are behind spousal support decisions. I was also surprised that some of these goals and purposes conflict with each other. The unfortunate result is that all courts have to perform a balancing act between these purposes and it often results in less than clear decisions. Considering that divorce isn’t the most cooperative process (to say the least), it is easy to see how this unpredictability can encourage costly court battles. To demonstrate this point, I will try to briefly describe three of the many purposes of spousal support.

One purpose is to compensate a former spouse for any investments they lost from the divorce. The typical scenario is when someone sacrificed a career to care for children. That sacrifice saved child-caring costs and allowed the other spouse to build a career with a stronger income, but prevented the stay-at-home parent from increasing their earning potential. When divorce strikes, that stay-at-home parent bears a bigger loss than the other spouse, so courts recognize they should balance that financial impact between the parties.

Another purpose is to ensure the financial needs of both spouses are taken care of. If one party no longer has the means to provide for themselves, then the other party should continue to provide for them. On the other hand, spousal support shouldn’t be granted unless the other party is actually able to pay it. Both parties needs have to be addressed before a reasonable conclusion can be made.

The big competing purpose (against the disadvantaged spouse) is that spousal support decisions need to encourage self-sufficiency of a disadvantaged spouse. If there wasn’t a push, some ex-spouses may never try to provide for themselves. They may try to just live off the other for as long as possible. Since that would hardly seem fair to a payer, courts recognize they have to try and prevent freeloading.

These are just three of many different purposes considered in spousal support decisions and already it is easy to see a balancing act. Real cases are much more complex so it is usually much less clear cut as to what the courts will decide. Unfortunately, this gives hope to both spouses that they may win a court battle, so it encourages fights instead of settlements.

Court battles cost large amounts of time and money. Often the amount a spouse can gain by a favourable judgement is not as much as the costs of litigation. Instead of sitting down and coming to a fair agreement themselves, many divorcees find a big chunk of their money go towards lawyers and legal fees to fight in court. That being said, court battles are often based on bitterness instead of any financial incentive, so financial sense may not prevent many cases from going to court.

In an attempt to address these issues, the Department of Justice of Canada supported the creation of Spousal Support Advisory Guidelines. These Guidelines are not law. Instead they are just a formula to assist in determining a fair number for support, and don’t address whether a spouse is entitled to spousal support. They have been a tool to help maintain a focus on the issues and to help parties resolve the issue before it goes to court. Judges also refer to them when they make decisions. Real cases are much more complex than can be captured in a formula, but the Guidelines can be regarded as a useful starting point.

Complex issues in inherently confrontational areas of law, such as divorce proceedings, will never have a simple solution. A broad general framework with many purposes and principles is required in order to be flexible enough to deal with the complexity of divorce cases. Unfortunately, a broad framework also usually brings uncertainty and litigation. Hopefully we are moving towards a legal system that can better manage these costs.

Tyler Holte is a J.D. Candidate at the University of Victoria Law School. He completed his B.Com at University of Alberta in 2012 with a major in Business Economics and Law with a minor in Accounting. Tyler is currently the First Year Representative of the Intellectual Property, Information, and Technology Law Club at University of Victoria. He formerly taught probability and statistics lab at MacEwan Univsersity.

The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice.

Family Court 101

Thu, 01 Nov 2012 20:15:00 GMT

Next season, one of our episodes will be on the theme of "Family Court 101" and will discuss the basics of Family Court and its court processes. The following is an introduction to the topic.

What is Family Court?

For many Canadians, the court system can seem complex and inaccessible. For those who are also dealing with the emotional strain accompanying family legal issues, the task of navigating Family Court can seem particularly daunting.

A look at the larger court structure can help break down what Family Court is and how it works. In Canada, there are two courts which deal with family legal issues: provincial courts (“Family Court”) and Supreme Courts. Family Courts are simply branches of the provincial courts that deal with certain family law issues. It is important to note that while there is some overlap in what issues the two different courts can address, there are also jurisdictional requirements that state that certain issues are to be addressed in a particular court. When considering what court can address a particular family law issue, it is important to keep these differences in mind.

Family Court Jurisdiction: What Issues Can be Addressed in Family Court?

Family Court can address issues related to:

child custody and guardianship,
access to children,
parental, spousal, and child support,
child protection orders and
personal protection orders.

Family Court cannot deal with cases involving:

divorce,
adoptions, or
the division of family property.

The last three must be addressed in Supreme Court as they fall under the purview of federal laws. In B.C., Family Court’s jurisdiction is governed by the Family Relations Act, the Family Maintenance Enforcement Act, the Child, Family and Community Service Act, and the Adult Guardianship Act. If you wish to obtain a divorce, have assets divided or make an adoption order you cannot address these in Family Court.

The Application Process

The application process for Family Court varies depending on what the particular family law issue is. Some carry certain pre-court requirements that applicants attend programming such as Parenting After Separation courses or meet with a Family Justice Counsellor to explore alternative dispute resolution options. The family law clerk at any provincial courthouse can help applicants understand the requirements for their particular issue and what steps they will need to take to apply to the court. If the situation is such that one of the parties or the parties’ children are in danger, such as in domestic violence and abuse cases, personal protection orders may be obtained to protect individuals during the legal process.

Basics of the Family Court Process

There are two ways in which Family Court may resolve legal disputes. First, a settlement of the parties’ dispute through negotiation or mediation may resolve the dispute before it goes to court. Negotiation is a bargaining process where parties attempt to reach an agreement regarding the dispute with or without lawyers. In mediation, a trained and neutral third-party meets with the parties and tries to help them reach a settlement. If negotiation or mediation processes are successful, the settlement can be put into writing and will confer legal obligations upon the parties. This is called a consent order.

In some cases, judges may require that the parties attend a pre-trial “Family Case Conference” over which the judge will preside. These conferences are private, informal meetings where the judge can ascertain what issues are disputed, mediate these disputes, try to assist the parties to reach an agreement and determine what other alternatives to a trial might be feasible. If an agreement can be reached, the judge can make a consent order during the conference.

If alternative dispute resolution methods fail or are not feasible, the parties will go to trial before a Family Court judge who will weigh the evidence and both parties’ arguments to make an ultimate order regarding the dispute. Witnesses may be called by both sides to support their arguments, but in some cases the only witnesses are the parties to the dispute themselves. Parties may self-represent in Family Court and do not require lawyers.

After trial, final decisions in Family Court may be appealed to the Supreme Court. Decisions from the Supreme Court can likewise be appealed to the Court of Appeal. This is an expensive process which may outweigh the benefits from a positive ruling.

Accessibility and Self-Representation in Family Court

Certain structural aspects of Family Court make it more accessible to lay litigants. The court rules are written in plain language that is easy to understand, making it much easier to self-represent in Family Court than in Supreme Court or a Court of Appeal. The court forms are also written in plain language, allowing applicants without legal training or counsel to fill them out themselves. Family Court also does not charge litigants court fees, making it considerably less expensive than pursuing a claim in Supreme Court or the Court of Appeal. Generally speaking, Supreme Court and the Court of Appeal have much more formal and structured court processes than Family Court. They carry more complex rules governing court processes and adhere to them more strictly.

Family Court Today

The number of cases initiated in Family Court has been on the rise since 1995, and the Court’s emphasis has shifted to alternative dispute resolution and informational programming in an attempt to alleviate some of the resultant pressure. Today, efforts are generally made to resolve the family law dispute before it goes to trial before a judge. Despite this, the number of Family Court cases remains on an upward trend and the consequent overburdening of the court system has led to criticisms that taking claims to Family Court is an arduous and slow process.

The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice.

An interview with Judge Harvey Brownstone: Advice for Family Lawyers

Mon, 27 Feb 2012 23:50:00 GMT

Josh D. Simon
Family Lawyer Magazine Contributing Writer

Family Lawyer Magazine spoke with Judge Harvey Brownstone, who has been sitting on the family law bench for over a decade, and asked him to share some advice for family lawyers on how they can be more successful and better serve their clients. Judge Brownstone shared six outstanding tips with us.

1: Know and respect your client’s emotional stage.

It’s rare that divorcing spouses are at the same emotional stage. It’s far more common – in fact, it’s the norm with very few exceptions – for one spouse to have emotionally disengaged from the marriage months, or even years before formal divorce proceedings begin.

And while it’s an overstatement to say that even the most emotionally prepared spouse is 100% ready for what the real divorce experience holds in store – with all of its uncertainties, stresses, procedures, complex children’s issues and of course, costs – it’s true that the spouse who initiates the divorce is almost always in much better shape to make key divorce decisions: what to do with the house, how to tie up the loose ends, and so on.

Family lawyers therefore do their client – and themselves, for that matter – an immense service by paying close attention to their client’s emotional stage. Are they emotionally disengaged, and therefore capable of seeing their divorce as a business transaction? Or are they reeling from having the “divorce bomb” dropped on them from above, and can’t separate the emotional issues from the practical ones?

If it’s the latter – and it’s not difficult for a perceptive, attentive family lawyer to quickly evaluate this – then my advice is clear: family lawyers should get their client into heavy duty counseling at the earliest possible opportunity.

Why? Obviously because their client is suffering deeply and perhaps even emotionally shattered, and attending to that serious problem ASAP is why professional counseling exists in the first place. But in addition to that, in the context of the divorce, family lawyers need to equip and empower their clients to separate the emotional issues from the business ones, so they can make wise, long-term decisions now — and not later, after the divorce is finalized, and when it’s too late.

I won’t suggest that counseling during divorce can totally heal clients – for most spouses divorce is traumatic, and it can take years for the healing to completely finish (if ever). But with that being said, counseling helps clients get to a point where they can make objective, well-considered decisions regarding their divorce. And frankly, that’s what clients want, that’s what their children want, that’s what judges want, that’s what family lawyers should want, too.

Literacy in the Courts

Tue, 08 Nov 2011 00:22:00 GMT

Frozen moment of judicial compassion

By Valerie Mutton

November 11 2011 issue Lawyers Weekly

Justice Harvey Brownstone presides at a suburban Toronto building in which 6,000 family court cases are open at any given moment. It is the busiest such setting in the country. But when he senses someone appearing before him has difficulty reading, he doesn’t mind taking a moment, slowing things down and carefully guiding the proceedings to make certain everyone grasps what’s going on. In a venue with no shortage of painful vignettes, these moments form poignant contrasts...

Roy Green Show today

Sat, 05 Nov 2011 17:39:00 GMT

J. Brownstone on Roy Green's radio show re: Texas judge who beat his daughter 3:30pm (ET). ow.ly/1zR7UF

Friends After Divorce - Possible? Recommended? - by Karen Stewart

Mon, 31 Oct 2011 18:42:00 GMT

Most will agree that being friends after a relationship is difficult as the question of ulterior motive and resentment can hover in the clouds. If friendship is in the cards it requires clear boundaries, a very understanding new partner and an ability of both parties to take responsibility and be accountable to the outcome of their relationship. The truth is that if two people who once were lovers can be friends there can be a comfortable and enduring trust that can serve to help lay the foundation for new relationships and the future. There is really not that much difference if the relationship was one of cohabitation, marriage or simply a long term partnership when it comes to the matters of the heart.

The additional pain of divorce however, is associated with the loss of family, assets and the children, which often results in conflict therefore making friendship very difficult. Children want first and foremost for their parents to remain married and if they can not have that then friendship is a second best. Unfortunately remaining friends is easier said then done in that there is usually a lot of baggage with regards to the divorce process itself. In addition, establishing clear boundaries when there is so much history is challenging. Friendship is a relationship built on trust, like-ability, integrity and kindness and for many divorced couples there is little left in these departments. So perhaps the better way to frame an optimum outcome post divorce relationship that is in the best interest of the children and the parents is one based on mutual respect. Respect does not mean, like, nor agree with, nor want to spend time with, but rather it is based on a mutual understanding of ones differences in actions, choices, value systems etc. A post divorce co-parenting relationship based on respect is in everyones best interest and serves to help empower both the parents and the children by demonstrating that while differences may not be able to live together, they can still hold each other in high regard and esteem - perhaps providing the children with a lesson that will serve them well their entire life.

Why Families Matter - by Deborah Moskovitch

Tue, 04 Oct 2011 23:52:00 GMT

"Trailblazer” isn’t a term often associated with divorce professionals. With the divorce rate hovering around 50 per cent, and over a million children annually experiencing their parent’s divorce, it is critical that couples understand the impact of divorce on families, children, the individual and society.

What I find most astounding is that the divorce rate rises with subsequent marriages (http://www.more.ca/relationships/single-life/divorce-myths-debunked/a/30888) – this only demonstrates that people are not learning from their mistakes, and/or not taking the time to understand their own needs and expectations. Divorce education is imperative. It’s easy to see why divorce has spawned a lucrative industry.

Without trying to sound too self-important, I am proud to have been referred to as a trailblazer, because I transformed my pain into a career that helps so many others. I am passionate about educating the public about divorce — the process, and the significant impact upon an individual and the family. Getting through my divorce was not easy; it was full of emotion, and needless to say significant legal bills. I learned many lessons along the way of my long protracted divorce journey, which is how I came to write The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers, Counselors, and Other Experts(Chicago Review Press, 2007). I wrote the book so that I could share my pain and others could heal from the lessons. I personally interviewed over 100 of North America’s foremost divorce professionals, so that others could be empowered with knowledge, and avoid my mistakes — while saving time, money and their sanity.

My role model for becoming a trailblazer in the divorce arena is Justice Harvey Brownstone. Justice Brownstone, Canada’s first openly gay judge, is single-handedly transforming the public image of the judiciary and enhancing access to justice. The public is desperately hungry for reliable, accessible information they can turn to about a myriad of issues impacting on relationships, parenting and the well-being of kids. With so many ways of looking at the family, and the many configurations, Justice Brownstone will also explore a number of issues related to same-sex relationships including marriage, adoption, parenting, surrogacy, and so on.

There aren’t any judges in Canada, and only a handful in the United States, that actually go out on a limb to share their wisdom and expertise without judging. It isn’t often that I write about other individuals, but I felt that furthering the cause to promote a new television show called Family Matters was in order. This is a talk show created to educate and enlighten parents and families about issues that are of importance to the modern North American family. Justice Brownstone wants parents to get the best possible information, directly from a judge, about the realities of family court and the alternatives available to litigation, so that parents could make informed decisions about how to resolve parenting disputes in a way that meets the best interests of their children. The show will deal with everything from open marriages to sexual addictions to online security and privacy to relationship formation, sustenance and dissolution.

Divorce is far more than obtaining a separation agreement; it’s managing emotions and finances, as diverse as a business transaction and the children’s best interest. This journey is creating a new normal for divorcees who question what normal is, and don’ t want to be identified with labels. Separation and divorce are filled with many nuances, hidden agendas, and fears. It’s time people really stepped up to the plate and learned what’s involved before they make the decision to separate, rather than learn while they divorce. Perhaps we can all learn a lesson or two about why Family Matters — and maybe the negative impact of divorce on children, the family and society can be lessened. You can start by tuning into Family Matters with Justice Harvey Brownstone.

Tune in October 4, 10:30pm on CHCH and watch my interview with Justice Brownstone

How to be Smart About Divorce with Deborah Moskovitch

Tue, 04 Oct 2011 23:41:00 GMT

I am both proud an honoured to be a guest on Family Matters with Justice Brownstone. This is by far one of my most informative and personal interviews; Justice Brownstone digs deep as I share my research and lessons learned so that anyone can have The Smart Divorce. He also delves into my own divorce journey, so that viewers are empowered with information and knowledge. Tune in tonight, October 4, at 10:30pm on CHCH TV.

If you are interested in learning more about The Smart Divorce Resource ToolKit ,which Justice Brownstone speaks so highly of, please email info@thesmartdivorce.com for more information.

Best-selling book on issues facing family court system leads to online talk show

Fri, 30 Sep 2011 04:01:00 GMT

By the Honourable Justice Harvey P. Brownstone

We are all aware that the single most important area of law that touches more people's lives than any other is family law. This is because family breakdown has reached epidemic proportions in North America, due in part to the facility and speed with which the multiplicity of social networking websites on the internet have enabled people to embark upon and terminate relationships. In recent years, family courts across the continent have become clogged with an avalanche of unsuccessful short-term relationships – relationships that were just long enough to produce a child. There is every reason to assume that this trend will continue as more and more people choose to engage in intimate relationships with partners they barely know.

Despite the widespread incidence of relationship breakdown, most people I encounter in my courtroom are remarkably ignorant of even the most basic principles of family law. The fact that in most major centers in Canada, up to 70% of all family court litigants are self-represented, only makes the problem worse. And the fact that a great number of family court cases involve vulnerable children caught in the middle of high conflict parental disputes, makes the situation urgent for the parents and children involved...

How To Protect Yourself Financially If You Are Considering Divorce Or Separation

Tue, 27 Sep 2011 20:32:00 GMT

Lorne MacLean of the MacLean Family Law Group whose website is at www.bcfamilylaw.ca enjoys providing the public with free legal information and lauds Judge Brownstone and producer Nancy Kinney for their important work in democratizing the law and bringing important information to people who are facing the stormy seas of marriage breakdown with their outstanding legal reality show FAMILY MATTERS TV. MacLean is in high demand as a speaker and author of numerous articles on family and divorce law. Here is MacLean's very popular article on protecting yourself before and during a divorce or marriage breakdown. If you have questions he can be reached at lorne@bcfamilylaw.ca .

If you are considering or are at the start of a marriage breakdown or separation you need to take immediate steps to protect yourself and the first thing you should do is contact a good family attorney and spend 30 minutes or more with them getting a summary of your basic rights and obligations. We feel the initial consultation is likely the most important part of starting a case and likely the best money you can spend early on in a case. People have so many misconceptions and can accept or make unfair offers based on anecdotal opinions from well meaning but often "legally clueless" friends and family members.

MAIL: Review all mail coming into your house and make a list of the sender and return address. It is very important to know the address of stockbrokers, insurance companies, credit issuers, banks, and revenue properties, COPY THESE DOCUMENTS.

PERSONAL MATTERS: Have your mail sent to an address other than the Matrimonial Home for your privacy and to ensure that you receive it. For example, a post office box or home of a close friend or relative. File a change of address notice with the post office.

FAMILY FINANCES: Review all monthly bank statements and brokerage statements, credit card statements, property assessments, and COPY THESE DOCUMENTS. Give copies of necessary documents to your lawyer for safekeeping.

TAX RETURN: Review all tax returns that have been filed by you and your spouse. Demand an explanation as to any item, which may be questionable before signing. Make complete copies of tax returns for the last several years.

TAXES OWED: Be certain that all taxes owed to the Federal Government or other taxing agencies are paid to date. IF NOT COPY NOTICES OF ASSESSMENT.

SAFE DEPOSIT BOX: Inventory and review the contents of any safe deposit box. List the contents including cash and jewelry. Be sure that all safe deposit boxes are in joint names. TAKE PHOTOGRAPHS AND COPIES OF THE CONTENTS.

BUSINESS INTERESTS: Be familiar with your spouse’s business interests. Become involved and be aware of financial information regarding the business by getting full information on the business, including bank documents, loan applications, corporate tax returns and financial statements.

MATRIMONIAL ASSETS: Do not transfer, sign, or make a gift of marital assets in joint names. Credit cards in joint names may discourage large personal purchases by one party. Conversely, you may wish to cancel credit cards to prevent large purchases by your spouse without your permission.

PENSION PLANS: Obtain copies of your pension plan and your spouse’s also with any yearly statements and determine when they vest and benefits become payable, ask for the plan booklets and latest contribution statements. These documents will be useful if you file for divorce in BC.

WILLS AND TRUSTS: Obtain copies of any wills or trust agreements and be involved in any estate planning.

LOANS: Review and make copies of all loan documents, mortgage applications, and financial statements.

SIGNATURE: Do not sign any financial statements if blank. Know what you are signing and always keep a copy.

MEDICAL: Have a complete medial and dental check up. Be sure that you have medical and dental insurance (if available) in the event of separation.

CANADA PENSION PLAN: Obtain Canada Pension Plan statements.

SAVINGS AND PERSONAL FINANCES: Separation generally causes immediate economic hardship. Put away cash or keep money in traveler’s checks in order to be able to purchase personal necessities in the event of a divorce.

AUTOMOBILE: Be sure that your automobile is in good working condition and that it is titled jointly or in your sole name.

INSURANCE: Review and make copies of all insurance policies relating to the matrimonial residence furnishings, or other assets. This should include any jewelry, silverware, or other valuable. Make copies of any appraisal that have been prepared. These documents will be useful if you file for divorce in BC.

INDEBTEDNESS: Do not create any additional debts and make no large purchases such as a new boat or car. Keep your assets as liquid as possible.

LIABILITY: Prepare a complete list of all debts or obligations including credit cards, notes, mortgages, etc. Identify each debts, when it was incurred and the reason for the debt. Identify who has been making payments on them, as well as the monthly or annual amounts.

ASSETS: Prepare a complete list of all assets in your name and your spouse’s. These documents will be useful if you ever file for divorce in BC. Include whether the assets are held individually or jointly and the source of the assets, whether inherited, gifted, or in the name of a third party on your behalf. It is important to determine whether the assets were acquired prior to or during the marriage. Make copies of any documents which show the details and values of all assets and debts.

INHERITANCES: Keep all inheritances separate from the marital estate. Do not put an inheritance into joint names and do not use proceeds to pay for family expenses or purchases or to pay down debts.

EMPLOYMENT: Do not quit work if you are employed. It is important to secure your future financial independence and earn enough to maintain assets such as your home and car.

RESIDENCE: DO NOT MOVE OUT of the family residence without first discussing it with your lawyer.

How Is Canadian Child Support Retroactively Corrected Under The Child Support Guidelines?

Tue, 27 Sep 2011 13:39:00 GMT

At MacLean family Law Group www.bcfamilylaw.ca we as Vancouver divorce and family lawyers have handled a number of spousal and child support retroactive cases including an interim retroactive support award case called J v J . Our client was ecstatic when we obtained one of the highest interim awards of spousal and child support for our client which approached $30,000 per month combined, together with substantial retroactive child support.

We have also represented numerous clients where we have sought to retroactively correct child support upward to reflect increases in the paying spouses incomes as well as to retroactively correct downward support based on a paying spouse’s lower income on the basis that the paying spouses should pay support on the proper income under the guidelines.

If you want to correct spousal or child support retroactively call us at any of our 4 offices province wide or fill out our contact form so we can begin to assist you.

A good summary of the obligations each spouse has in this area can be found at the Justice Canada website

One question not directly raised in the Supreme Court decision is whether the principles set out within the SRG case apply to payors who seek a retroactive reduction in child support obligations.[62] D. Smith discussed this issue, noting that the argument in support of extending the Supreme Court’s discussion to retroactive reduction claims was likely to be that “the underlying principle of the decision is that support should match income—as income changes, so should support. In that instance, it is difficult to conclude that a reduction in income historically should not at least open the door to the analysis.“[63] It appears that this rationale has been successfully applied in a handful of claims seeking retroactive reduction of support obligations.[64] D. Smith’s conclusion, however, that while payor variations may be possible based on the reasoning within the decision, it will be difficult to succeed factually, is likely true.[65]Despite the fact-specific application of the factors set out in SRG and the associated challenges of predicting likely outcomes, some practitioners feel that the decision has enhanced certainty in terms of overall client expectations. Phil Epstein, for example, says that clients are now clearer about their obligation to increase support with increased income, and about the likely ramifications of not doing so.[66] Epstein and Madsen suggest that “the safe and cautious message to give payors is certainly to disclose changes in their income, pay in accordance with the Guidelines, or be at risk of a retroactive award at some point in the future.“[67]The implementation of recalculation schemes within each province and territory would, in the author’s view, be the ideal manner by which to foster greater certainty and relieve recipient parents of the potentially daunting burden of initiating negotiations for revised support obligations with a former partner. Until such schemes are in place, however, it would be extremely useful for counsel to consider the following approaches[68] when dealing with child support matters:

A. Recipients’ Counsel:

Discuss the consequences of the SRG decision with clients.
Include or ask for the inclusion of a requirement for annual disclosure pursuant to s. 25 of Guidelines in all agreements, minutes of settlement and court orders.
Include or ask for the inclusion of a requirement for annual adjustments of child support in accordance with income in all agreements, minutes of settlement, and consent orders and court orders.
Advise clients to make formal written demands for disclosure on a regular (not more than once a year) basis, and to record these demands in writing.
Advise clients to make note of dates of any informal requests.
Do not negotiate for too long.
Adduce proper evidence regarding the reasons for any delay in seeking additional support.

B. Payors’ Counsel:

Discuss the consequences of the SRG decision with clients.
Advise clients that their financial obligation towards their children survives the breakup of the relationship.
Advise clients to consult the Guidelines and pay the appropriate amount on a voluntary basis.
Disclose income increases on a regular and voluntary basis.
Advise clients that failure to disclose or delay in disclosing (especially after requested to disclose by recipient) may lead to a finding of blameworthy conduct that could lead a court to order retroactive support back to the date of material change in income.

REMEMBER DELAY PREJUDICES A SPOUSE SEEKING AN INCREASE AS WELL AS THE SPOUSE WHO IS SEEKING A DECREASE.

Prenups, I do or I don't? - by Karen Stewart, CEO of Fairway Divorce Solutions®

Mon, 26 Sep 2011 19:27:00 GMT

I have been involved with helping clients put together prenups and while I agree that some form of pre marriage agreement is prudent if there are a lot of assets, we have gone overboard. The biggest problem is that prenups simply do not lay the foundation for a partnership. Take for example two people that go into a business together 50/50 and they both contribute in their way to the business but only one of the parties gets to keep all the benefits if they decide to part. I am guessing that very few people would entire that type of business arrangement. That is however the scenario that can be created with a poorly drafted prenup. Prenups are best left out of the lawyers hands until all the issues and scenarios have been discussed at which time they can paper the deal. Be very careful however as you may destroy the partnership before it begins. Marriage is about love, security, trust, commitment and faith and a poor prenup can kill the security, trust and commitment factor pretty easily.

Balancing Back to School Budget - by Karen Stewart, CEO of Fairway Divorce Solutions®

Mon, 26 Sep 2011 19:24:00 GMT

Balance Needs VS Wants

There is a ton of pier pressure around back to school clothing and supplies. Make a list of their “needs” and agree that the children will get one or two of their “wants” met and then allocate a set dollar amount that they are free to spend.

Set Budget in Advance of Shopping

Before you venture into any store with the wondering eyes of your children set a non-negotiable budget. This is not just for their purposes but it is to keep Mom and Dad from caving into those pleading eyes.

Make a detailed list before you hit the stores

We know we should not go grocery shopping when we are hungry and the same rule applies when taking the kids for “back to school” shopping. Way too many temptations for even the strong willed.

Set Budget for extracurricular activities before you sign up

After school activities are an important part of a child’s development and while we want them to be involved, we need to balance activities with our ability to pay. Set a budget per child that covers lessons, equipment etc and then engage in a conversation with them and the other parent about allocation of resources before you sign them up. Kids will also take more ownership of their schedule this way as well.

Empower kids financially

We give children an allowance for “extra” things but consider providing them enough money so that they can learn to budget for the things they need as well. One of the big stresses in divorced families is the loss/damage of things that go back and forth. If starting around age 11, your child is responsible for their clothing budget then they will take ownership and amazingly - things all of a sudden do not seem to go missing.

Mediation vs. Litigation - by Karen Stewart, CEO of Fairway Divorce Solutions®

Mon, 26 Sep 2011 19:22:00 GMT

A common sense trend to Resolving Matrimonial Issues

Finding yourself on the doorsteps of divorce is hard enough emotionally but add the multitude of decisions that are going to have to be made and it can feel completely overwhelming. While there are only two main areas for decision-making; kids and money, coming to resolution can take years and use up a lot of your hard earned wealth. While there is more of a trend towards mediation, many people still feel the need to hire top guns with the perception that their “rights” will be better attended served. In many cases on the pursuit of one’s “rights”, “best deal” or “win”, the cost associated with an unpredictable outcome does not justify the time or the means.

On the continuum of resolving divorce issues, on one end is Litigation and the other end, Mediation. Moving from one spectrum to the other you might find, arbitration, collaborative law, interest based mediation, and other hybrids all worthy of consideration. While there may be the perception that litigation is in fact “taking control” the opposite is usually true. The reality is that retaining a litigation lawyer sets in motion a series of applications, affidavits, court appearances that destroys assets and relationships. Litigation is prudent in some cases where the parties have pursued every other means to resolve their issues with no success. While the outcome with litigation may be “just” in the face of the law, it is often not “fair”. The judge has to use the information put forth by the lawyers and in the affidavits with the assumption that both parties are being truthful. We know this simply is not the case. Take for example, where one party is basically telling the truth and the other is not, the outcome will likely be somewhere in the middle as there is simply not enough time or resources to achieve the real picture. To seek litigation to either prove your point, make the other person pay or to assume the outcome will be a win for you is unfortunately naive.

It is best that you and your spouse make the final decisions about money and kids, regardless of whether you get along or not. Ensuring you are an empowered decision maker with financial and co-parenting knowledge is the best recipe for success. New mediation models like “Independently Negotiated Resolution” are process and results driven and ensure that both parties are well equipped to make decisions. While mediation has been traditionally thought of for only amicable couples, new innovated models can achieve resolution for conflicted families as well. The key is to keep your assets in your pockets and preserve relationships.

Law Times: Inside Queen's Park: Ontario judge’s TV show has legs

Mon, 26 Sep 2011 17:10:00 GMT

Inside Queen's Park with Ian Harvey

Ian Harvey's Law Times interview with Justice Brownstone & Nancy Kinney:

Move over, Dr. Phil. Here comes the judge, as in Ontario Court Justice Harvey Brownstone.
The Toronto family court judge has added a new jurisdiction to his purview on Tuesday nights at 10:30 p.m. on CHCH TV in Hamilton, Ont., as well as the CHEK network...

Lawyers Weekly: Judge Brownstone goes prime time

Mon, 26 Sep 2011 17:05:00 GMT

	Look inside >

Contents

Family Court Justice Harvey Brownstone Reflects on Changes, Issues, and Trends on Divorce in the Last 15 Years

Mon, 26 Sep 2011 16:54:00 GMT

Our Interview with Justice Harvey Brownstone

DM: Justice Brownstone, from your perspective on the bench, what divorce issues have changed the most over the last 15 years?

JB: There are three things that have changed the most in the past 15 years. They are the Internet, the Internet, and the Internet! Judges have witnessed a complete revolution in both the composition and, unfortunately, the decomposition of relationships because of the Internet. And this has led to an avalanche of failed relationships that the court system must somehow deal with. And when I say avalanche I’m not exaggerating. It’s truly an avalanche. There’s no other way to describe it.

DM: How has the Internet helped create this avalanche?

JB: For starters, the problem today is that the Internet makes it so easy for people to meet and convince themselves that they’re madly, deeply in love. Of course most of them aren’t in love. They’re infatuated, excited, and swept up in the fantasy. They can pretend to be someone they aren’t, and they can just as easily be vulnerable to someone else’s deception...

Family Lawyer Lorne MacLean Explains How Spousal Support Works in Canada

Wed, 21 Sep 2011 13:51:00 GMT

What Happens To Spousal Support After The Children Grow Up? - Don't Make A Big Mistake!

Wed, 21 Sep 2011 01:16:00 GMT

Lorne MacLean and all of the lawyers at the MacLean Family law Group are pleased to sponsor Family Matters TV as it powerfully leverages television and the internet to allow Judge Brownstone and other experts to share their free advice broadly and efficiently to the public.

As family law and spousal support lawyers with offices in Vancouver, Surrey, Kelowna and Fort St. John British Columbia we know that- how much spousal support should be paid and how long spousal support should be paid- is one of the most emotional issues clients face at the time of divorce and marriage breakdown.

Have you ever asked yourself the following questions:

Will my spousal support always remain the same?

Does the amount of child support I pay or receive affect the spousal support payment?

If our children become financially independent adults, will the spousal support payment still remain the same?

The MacLean Family Law Group believes a better understanding of the Spousal Support Advisory Guidelines will help you answer these questions.

The Spousal Support Advisory Guidelines are used as informal but legally persuasive guidelines that assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support. While the Guidelines are not law per se, a series of cases in the BC and other Canadian Superior Courts from 2005 to 2011 make it clear that the Guidelines must be considered when making a decision on spousal support.

There are two basic formulas:

The without child support formula: where child support is not paid and this formula multiplies the years of the relationship times a range of 1.5-2 percent of the annual income difference of the spouses. For example in a 25 year marriage the paying spouse could pay between 37.5 to 50 percent of the difference in income to their lower earning spouse. The payment will last longer as the length of the relationship increases and can be for life. In long marriages incomes may approach equalization while in shorter marriages the amount will be lower and for a shorter period of time.

When people ask for a simplistic version of how spousal support works I tell them -"it's just like the story of Robin Hood- we take form the rich to give to the poor?"

Support is driven by the differences in income of the spouses and we often argue over what each spouse can really earn. When I was in the Supreme Court of Canada I made the powerful and compelling argument that "we cannot encourage paying spouses to quit their jobs to pay less support anymore than we can countenance recipient spouses who refuse to work to get higher support. I told the SCC to do so weakens Canada as a nation. I say support should be paid for spouses who are not able to be self sufficient not for those who refuse to become self sufficient.

The second formula is called the "with child" support formula: where there is a legal obligation to pay child support.

This formula often results in a combined child and spousal support payment for the receiving spouse’s family unit of over 52 percent of the net family income BUT at the same time a lower spousal support payment because the amount of spousal support payable is calculated by taking into account the payment of child support and sharing what is left over.

But -what happens when children cease to be children of the marriage as in situations where they become financially independent adults or finish their education?

What takes place is a transition from the "with child" formula to the "without child" formula. This means that a spouse can apply to the court to vary their spousal support order, bringing them under the without child formula. A good lawyer will build in a transition provision in the order or agreement so there will be a reduced need to come back to Court. The goal is to properly take into account that there should be an increase in spousal support once child support is no longer payable and the payor’s ability to pay spousal support is now improved as a result. We call this a transition from the with child to the without child support and MANY PEOPLE FAIL TO CONSIDER THIS. DON'T BE ONE OF THOSE PEOPLE!

So there you have it. To briefly answer the questions above:

No, spousal support does not always remain unchanged;

Yes, child support does affect your spousal support payment; and

If your children cease to be children, your spousal support may properly increase.

Spousal support is one of the most complicated areas of family law. We strongly advise you to get legal advice from a lawyer specializing in family law. Special software is needed to calculate spousal support amounts, especially if child support is a factor. Contact a good family lawyer in your province including those who provide free advice on Legal Advice Scene or feel free to call us the MacLean Family Law Group at (604)602-9000 in Vancouver or any of our other three offices across the province. You can even call us Toll Free across North America at 1-877-602-9900.

Good Luck!

Lorne MacLean

lorne@bcfamilylaw.ca

Family Matters with Justice Harvey Brownstone

Breaking Up

Spousal Support

Family Court 101

An interview with Judge Harvey Brownstone: Advice for Family Lawyers

1: Know and respect your client’s emotional stage.

Literacy in the Courts

Frozen moment of judicial compassion

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Roy Green Show today

Friends After Divorce - Possible? Recommended? - by Karen Stewart

Why Families Matter - by Deborah Moskovitch

How to be Smart About Divorce with Deborah Moskovitch

Best-selling book on issues facing family court system leads to online talk show

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How To Protect Yourself Financially If You Are Considering Divorce Or Separation

How Is Canadian Child Support Retroactively Corrected Under The Child Support Guidelines?

Prenups, I do or I don't? - by Karen Stewart, CEO of Fairway Divorce Solutions®

Balancing Back to School Budget - by Karen Stewart, CEO of Fairway Divorce Solutions®

Mediation vs. Litigation - by Karen Stewart, CEO of Fairway Divorce Solutions®

Law Times: Inside Queen's Park: Ontario judge’s TV show has legs

Read More

Lawyers Weekly: Judge Brownstone goes prime time

Family Court Justice Harvey Brownstone Reflects on Changes, Issues, and Trends on Divorce in the Last 15 Years

Read More

Family Lawyer Lorne MacLean Explains How Spousal Support Works in Canada

What Happens To Spousal Support After The Children Grow Up? - Don't Make A Big Mistake!