Advice on Children, Property & Spousal Support
The event of a separation is usually very emotional for most people and brings with it many questions and much uncertainty, but at the same time requires that many decisions are made relatively quickly.
- Do you continue living under the same roof or must you leave?
- If someone should leave, then who?
- What happens with the children?
- What happens with the bank accounts?
- Who is responsible for the regular payments?
These are just some of the most common questions, but there are many, many more. As they say, the devil is in the details, so your best strategy is to talk to someone who specializes in family law as soon as possible. If you are contemplating a separation, or have separated, call a lawyer. A consultation does not commit you to any course of action, it simply provides you with additional information on which to base some of your decisions, and unlike your google search results, or this article, will actually be tailored to your specific situation.
Some of the cornerstones of family law in BC can be summarized as follows:
- “Custody” is no longer a term used in family law. It used to be a term used to describe the decision making rights, not time with the children. Time with the children is called parenting time.
- In the majority of cases it is extremely difficult to get an order for children to reside with one parent on a primary basis unless it is by agreement. “Sole custody”, as many people still refer to it, meaning sole or primary residence with the children and sole or primary decision making powers, is not a realistic outcome in 99.9% of cases.
- The only consideration when deciding on what is the appropriate parenting arrangement for the children is what is in the children’s best interests (please see section 37 of the Family Law Act for a list of factors that must be considered).
- No one parenting arrangement is presumed to be in the best interests of the child.
- Both parents are automatically guardians of the children and have equal rights to make all decisions with respect to the children after consultation with the other guardian, and only in the event a joint decision is made. So no, if you and your former partner can’t agree on whether the children should be moved to a different school, or whether you can move to a different town, or to agree on whether or not the child should see a counsellor, you cannot make a unilateral decision. A court application must be made.
- Child views are sometimes a factor, but they are not definitive. A 10, 12, 14 or sometimes even a 17 year old can’t just decide not to see the other parent. As the child grows older and more mature their voice gets more weight, but it is virtually never just up to the child.
- Do not involve your children in the conflict or expose them to litigation.
- Unless you are in a 50/50 parenting arrangement and your annual incomes are exactly the same, one of you must pay child support to the other, the only question is how much. A child support obligation starts immediately upon separation, so it is best to speak with a lawyer sooner rather than later. It is a lot easier for most people to pay child support on a monthly basis than to accumulate a significant retroactive obligation and having to pay it all in one go.
- Please do not sign anything before you speak with a lawyer. If that “best offer you will ever get” is on the table today, chances are it will be on the table a week from now. And chances are it is not the best offer you will ever get. At a minimum, you are entitled to get some reasonable disclosure and to consult a lawyer before you make a decision that could affect you for the rest of your life.
- There is no “my” or “your”, there is only “our”. If one of you owns something or owes a debt at the time of separation, chances are it will be divided 50/50. That’s the starting presumption. It may be possible, depending on the circumstances, to achieve unequal division, or exclude some of your property from division, or to offload some debt onto your former partner, but that requires an in-depth assessment. So don’t tell your partner that the car, or the business, or the house is “mine alone” and that they will “never see a dime”. Chances are they will see a lot more than a dime. Talk to a lawyer. We would be happy to give you a much better idea of what you should really be expecting.
- Both of you are equally responsible for what we call “maintenance and preservation” payments. For most people these include things like mortgage, car loan payments, house insurance, property taxes, interest payments on debt, etc.
- Do not make any sudden changes to your financial arrangements or make big purchases before you speak with a lawyer.
You may be entitled to receive spousal support. Or you may be responsible to pay spousal support. Generally speaking, the longer the two of you have been together and the more disparity there is in your annual incomes, the more likely it is that spousal support is going to be a topic for discussion. Every situation is unique. Please talk to a lawyer to learn more.
If you are separating or looking for help with any family law issues, please reach out to any member of our LK Law Family Law Team. We would be pleased to help!
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.