Vancouver Family & Divorce Lawyers | Henderson Heinrichs LLP

FAQS



Child Support

The kids live with each of us 50% of the time. Who pays child support?

If you have your children an equal amount of time as your spouse, you have a shared parenting regime. Generally, in that case, the child support payable is determined on a set off basis. The person with the higher income will pay a top up amount of support to the lower income parent. In some cases, the set off approach will not operate fairly and child support will be determined taking into account other factors such as a comparison of each household’s expenses as it pertains to the children.

 

My kids are at university, do I still have to pay child support?

Generally speaking, you will have to pay some amount of child support while your children are at University. If your child is living at home with a parent, then child support will be payable. If your child is away at school, child support may not be payable while they are away but may be payable when they are home during the summer.

What happens if you refuse to pay child support in BC?

Refusing to pay child support will likely result in your spouse registering with the Family Maintenance Enforcement Program. Once registered, they will take over enforcement of any child support order or agreement. Enforcement steps can include garnishment of wages, garnishment of your tax refunds, suspension of your driver’s licence and passport, and in serious cases, it can include being put in jail.

 

Do you always have to pay child support?

The short answer is yes.

Child support is mandatory and it is the right of the child, not the parent, to receive support. It is imposed by the court to ensure that children are economically support by both their parents. Even if your spouse agrees to not ask for child support, that arrangement will not be upheld by the court.

How long do you have to pay child support in BC?

Child support is payable until your child turns 19 years of age unless they go to school after high school.  In that case, if they are living at home with a parent, child support will be payable for the duration of their first degree or diploma.  Usually, this is 4 years.

How much child support do you have to pay in Canada?

How much child support you have to pay will depend on a number of factors:

  • Your income
  • How many children you have
  • Your parenting arrangements (if you have more than 40% time with your children your support may be adjusted)
  • The province where the person paying support lives

Child support is calculated using the Federal Child Support Guidelines based on your income and number of children and the province where the person paying lives.

Click to view the Child Support Table Look-up.

Note, there are different tables depending on the time period involved.

How is child support calculated in British Columbia?

Child support is calculated using your income and the number of children that you have.  It is determined using the Federal Child Support Guidelines for British Columbia.

Click to view the Child Support Table Look-up.

Children's Family Law Issues

At what age can children decide which parent to live with?

Generally speaking, once a child turns 13, their wishes are going to be considered in parenting arrangements.  The BC Family Law Act provides for a court to consider the wishes of the children in determining what is in their best interests but younger children are less likely to have a determining role.  The decision of a child on parenting must be made without influence by the other parent.  The maturity of the child will be considered.

Do you have to pay child support if you weren’t married?

Child support is the right of the child and is payable regardless of whether the parents were married, common law, or were dating at the time the child was born.

Who gets custody of the children in a common law separation?

Parenting arrangements between common law partners is no different from married partners.  “Custody,” now referred to as parenting time in British Columbia, is based on the best interests of the children, taking into consideration the child’s physical, psychological and emotional safety, security and well-being.

Some factors which determine what is in their best interests are:

  • the child’s health and emotional well-being;
  • the child’s views, unless it would be inappropriate to consider them;
  • the nature and strength of the relationships between the child and significant persons in the child’s life;
  • the history of the child’s care;
  • the child’s need for stability, given the child’s age and stage of development;
  • the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  • the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
  • whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
  • the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
  • any civil or criminal proceeding relevant to the child’s safety, security or well-being.

What happens when unmarried parents split up?

Unmarried parents living in British Columbia will have their rights and obligations towards each other determined under the BC Family Law Act. Parenting arrangements are always determined based on what is in the best interests of the child/ren.

What happens to child support if you lose your job?

In most cases, losing your job will allow you to apply to vary your child support.  The loss of income will need to be long lasting.  Generally, if you are able to get new employment within 3 months of losing your last job, a court will not vary support for that short period of time.

The kids live with each of us 50% of the time. Who pays child support?

If you have your children an equal amount of time as your spouse, you have a shared parenting regime. Generally, in that case, the child support payable is determined on a set off basis. The person with the higher income will pay a top up amount of support to the lower income parent. In some cases, the set off approach will not operate fairly and child support will be determined taking into account other factors such as a comparison of each household’s expenses as it pertains to the children.

 

My kids are at university, do I still have to pay child support?

Generally speaking, you will have to pay some amount of child support while your children are at University. If your child is living at home with a parent, then child support will be payable. If your child is away at school, child support may not be payable while they are away but may be payable when they are home during the summer.

What happens if you refuse to pay child support in BC?

Refusing to pay child support will likely result in your spouse registering with the Family Maintenance Enforcement Program. Once registered, they will take over enforcement of any child support order or agreement. Enforcement steps can include garnishment of wages, garnishment of your tax refunds, suspension of your driver’s licence and passport, and in serious cases, it can include being put in jail.

 

Do you always have to pay child support?

The short answer is yes.

Child support is mandatory and it is the right of the child, not the parent, to receive support. It is imposed by the court to ensure that children are economically support by both their parents. Even if your spouse agrees to not ask for child support, that arrangement will not be upheld by the court.

How long do you have to pay child support in BC?

Child support is payable until your child turns 19 years of age unless they go to school after high school.  In that case, if they are living at home with a parent, child support will be payable for the duration of their first degree or diploma.  Usually, this is 4 years.

How much child support do you have to pay in Canada?

How much child support you have to pay will depend on a number of factors:

  • Your income
  • How many children you have
  • Your parenting arrangements (if you have more than 40% time with your children your support may be adjusted)
  • The province where the person paying support lives

Child support is calculated using the Federal Child Support Guidelines based on your income and number of children and the province where the person paying lives.

Click to view the Child Support Table Look-up.

Note, there are different tables depending on the time period involved.

How is child support calculated in British Columbia?

Child support is calculated using your income and the number of children that you have.  It is determined using the Federal Child Support Guidelines for British Columbia.

Click to view the Child Support Table Look-up.

Cohabitation Agreements

What’s the difference between a cohabitation agreement and a prenup?

A cohabitation agreement and pre-nuptial agreement are basically the same thing. Most lawyers draft cohabitation agreements to continue to apply if you get married. A pre-nuptial agreement can be more precise and take effect on the date of intended marriage.  The terms in both agreements are generally the same and the same factors to ensure that the agreement is upheld on separation apply.

What happens if I was pressured into signing a prenup?

Undue influence and duress are two common law factors that are considered by a court when someone is seeking to set aside a pre-nuptial or cohabitation agreement. Generally, it is not enough to feel pressure to sign to keep the relationship going, or the wedding date preserved.  The undue influence or duress must be significant in order for it to be a determining factor in setting aside an agreement.

Should I get a cohabitation agreement in BC?

If you want to protect property that you are bringing into a relationship, you should consult a lawyer to see if a cohabitation agreement is right for you. If you do not have a cohabitation agreement, after two years of living together, you become common law spouses under the BC Family Law Act and your partner becomes entitled to property and support rights. With a cohabitation agreement, you can modify the default operation of the property division and support obligations under the Act.

Are cohabitation agreements legally binding in BC?

Generally speaking, properly drafted and executed cohabitation agreements are legally binding in BC. Cohabitation agreements could be set aside by a court if:

  • There has not been full disclosure made about assets, liabilities and income,
  • One spouse took improper advantage of the other spouse’s vulnerability, including their ignorance, need or distress,
  • One spouse did not understand the nature or consequences of the agreement – for example, no legal advice has been given to the person on their rights and obligations under the agreement,
  • The agreement operates so unfairly that a court will want to set it aside.

If you are thinking about a cohabitation agreement, you will need to make full disclosure of your assets, liabilities and income as part of the negotiation process.  Your partner will need to obtain independent legal advice on the agreement prior to signing and it is best if that lawyer provides a Certificate of Independent Legal Advice which confirms that:

  • They reviewed the agreement with the other side,
  • They provided the other side with legal advice on the agreement and how it departs from the BC Family Law Act (if it does),
  • They confirm that the agreement was signed by the other side of their own free will and not under any duress or pressure from the drafting party.

What happens if I don’t have a cohabitation agreement?

If you do not have a cohabitation agreement and you have lived with your partner for two years, or you marry your partner, then you will have your legal rights and obligations determined under the BC Family Law Act and/or the Divorce Act.

How much does a cohabitation agreement cost in BC?

A properly negotiated and drafted cohabitation agreement will be billed on an hourly basis. You can generally expect to spend a minimum of $2,500 for an agreement.

Collaborative Divorce

What is Collaborative Law?

Collaborative law is a specific type of legal representation that allows you and your spouse to work outside of the litigation process.  You and your spouse will each have your own Collaborative Divorce Lawyer and you will sign a contract to commit to the process.  The goal is for a resolution to be negotiated in a non-adversarial process.   You still have to go through full document disclosure to make sure that any resolution that you reach is done so with a full understanding of the financial situation of your family.

Your Collaborative lawyer can also arrange for you to work with Divorce Coaches or financial planners if that is needed.

Is Collaborative Law Right for Me?

In order for the Collaborative law process to work, there needs to be a real commitment to the process by both you and your spouse.  If you have serious questions about whether your spouse is going to be willing to disclosure their financial information or if there is a history of family violence, then this process may not be right for you.

Is Collaborative Law Less Expensive than going to court?

If you and your spouse are committed to working within this process then you should be able to reach a settlement at significantly less cost, both emotionally and financially, then if you had to go to court.   Your costs will be increased if you bring on the full Collaborative Law team by hiring Divorce Coaches, child specialists and financial planners.

What happens if the Collaborative Law process doesn’t work?

If you cannot reach a resolution in the Collaborative process, you are left with having to end your contract, hire new lawyers and start fresh, likely in litigation.

 

Common Law Separation

Do you have to pay child support if you weren’t married?

Child support is the right of the child and is payable regardless of whether the parents were married, common law, or were dating at the time the child was born.

Who gets custody of the children in a common law separation?

Parenting arrangements between common law partners is no different from married partners.  “Custody,” now referred to as parenting time in British Columbia, is based on the best interests of the children, taking into consideration the child’s physical, psychological and emotional safety, security and well-being.

Some factors which determine what is in their best interests are:

  • the child’s health and emotional well-being;
  • the child’s views, unless it would be inappropriate to consider them;
  • the nature and strength of the relationships between the child and significant persons in the child’s life;
  • the history of the child’s care;
  • the child’s need for stability, given the child’s age and stage of development;
  • the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  • the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
  • whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
  • the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
  • any civil or criminal proceeding relevant to the child’s safety, security or well-being.

What happens when unmarried parents split up?

Unmarried parents living in British Columbia will have their rights and obligations towards each other determined under the BC Family Law Act. Parenting arrangements are always determined based on what is in the best interests of the child/ren.

Who gets the house when an unmarried couple splits up?

If you have been living together in British Columbia for more than 2 years and are spouses under the Family Law Act, then the division of the family home is determined under that Act.

If you are not spouses, then the situation will be determined based on ownership of the property or any agreement that you have made about ownership.

 

We were never married what happens when we split up?

If you have been living with your partner for more than 2 years, you are common law spouses under the Family Law Act. That means that you have rights and obligations to your spouse in the same way as if you were married.   Property will be divided in accordance with the Act and there may be spousal support aka alimony obligations.

If you have not been living together for 2 years then you are not spouses under the Family Law Act.

 

 

Divorce

Do I need a separation agreement to get a divorce?

You do not need a separation agreement to get a divorce but it is generally what occurs. If you have children, you are going to need to have some form of separation agreement that deals with child support in place before getting a divorce.  A court will not grant a divorce without proper arrangements being in place for the support of children.

Are wills invalid after divorce?

Wills are not invalid on divorce.  The separated spouse will not be entitled to share in any gift under a will made while married. It is still good practice to update your will on separation or divorce.

Can I just get an annulment?

Annulments are very rare as there is a strict legal test that has to be met before a court will annul a marriage. Simply not consummating the marriage is not a legal basis to get an annulment.

Do I have to go to court to get a divorce?

Unless you have a full trial to resolve your case, you will not need to go to court to get your divorce.

Do you need a separation agreement before you can get a divorce?

Except in rare circumstances, the Courts in BC will not give you a divorce without there being a settlement or determination of all of your outstanding family law issues. If you have a separation agreement, this document is often provided to the court when the divorce application is made.

If you do not have children, it may be possible to obtain a divorce without a separation agreement provided that you do not have a family law action that claims relief against your spouse other than a divorce. If you have an action that claims relief such as property division, parenting orders, and/or support, you will need to have a resolution of those issues before the court will grant a divorce.

What’s an uncontested divorce? Is that the same thing as a desk order divorce?

An uncontested divorce is where both spouses want to obtain a divorce and there are no other issues to be resolved. One spouse will start the proceedings and take the steps necessary to obtain the divorce. The other spouse does not have to do anything in this process. This type of divorce application is called a desk order divorce because it is done without a court appearance.

How long does it take to get a divorce?

After you have had your one year separation and you have submitted your paper work to the court, it will take about 2 months for the divorce order to be granted by the court. The actual time will depend on the case volume that is being processed within the court registry.

How much does it cost to get a divorce in BC?

A straight forward uncontested divorce with no children will cost $1,250 plus taxes and disbursements at Henderson Heinrichs LLP. Other firms may charge different amounts.

If you have other issues to resolve such a property division, parenting arrangements and support, the cost of the divorce process cannot be determined in advance as there are too many factors which will impact how much time will be needed to resolve your case.

 

How do I get a divorce in BC?

To get a divorce in BC, you have to:

  • Have been a resident of BC for a least 1 year
  • Have been separated from your spouse for 1 year
  • Have arrangements in place for the financial support of any children

 

Estate Planning And Divorce

How can divorce affect estate planning?

If you are getting a divorce, you will need to update your will or your estate planning documents to reflect your changed circumstance. In some settlements or court orders, support obligations may be made binding on your estate. If that is the case, you need to ensure that your estate has sufficient funding to cover those obligations.

If you die before you are divorced but after separation, your separated spouse is not entitled to their share of your estate under the operation of the Wills Estates and Succession Act. It is good practice to do a new will after separation just to confirm this as the surviving spouse could say that you were not separated as a way to claim from your estate.

Are wills invalid after divorce?

Wills are not invalid on divorce.  The separated spouse will not be entitled to share in any gift under a will made while married. It is still good practice to update your will on separation or divorce.

Can my ex claim my inheritance after divorce?

Inheritances that are received after divorce are not subject to any claims by your former spouse as property. If the inheritance generates income, that increased income may be considered in your support obligations.

 

 

Family Law Agreements

What’s the difference between a cohabitation agreement and a prenup?

A cohabitation agreement and pre-nuptial agreement are basically the same thing. Most lawyers draft cohabitation agreements to continue to apply if you get married. A pre-nuptial agreement can be more precise and take effect on the date of intended marriage.  The terms in both agreements are generally the same and the same factors to ensure that the agreement is upheld on separation apply.

Should I get a cohabitation agreement in BC?

If you want to protect property that you are bringing into a relationship, you should consult a lawyer to see if a cohabitation agreement is right for you. If you do not have a cohabitation agreement, after two years of living together, you become common law spouses under the BC Family Law Act and your partner becomes entitled to property and support rights. With a cohabitation agreement, you can modify the default operation of the property division and support obligations under the Act.

Are cohabitation agreements legally binding in BC?

Generally speaking, properly drafted and executed cohabitation agreements are legally binding in BC. Cohabitation agreements could be set aside by a court if:

  • There has not been full disclosure made about assets, liabilities and income,
  • One spouse took improper advantage of the other spouse’s vulnerability, including their ignorance, need or distress,
  • One spouse did not understand the nature or consequences of the agreement – for example, no legal advice has been given to the person on their rights and obligations under the agreement,
  • The agreement operates so unfairly that a court will want to set it aside.

If you are thinking about a cohabitation agreement, you will need to make full disclosure of your assets, liabilities and income as part of the negotiation process.  Your partner will need to obtain independent legal advice on the agreement prior to signing and it is best if that lawyer provides a Certificate of Independent Legal Advice which confirms that:

  • They reviewed the agreement with the other side,
  • They provided the other side with legal advice on the agreement and how it departs from the BC Family Law Act (if it does),
  • They confirm that the agreement was signed by the other side of their own free will and not under any duress or pressure from the drafting party.

What happens if I don’t have a cohabitation agreement?

If you do not have a cohabitation agreement and you have lived with your partner for two years, or you marry your partner, then you will have your legal rights and obligations determined under the BC Family Law Act and/or the Divorce Act.

How much does a cohabitation agreement cost in BC?

A properly negotiated and drafted cohabitation agreement will be billed on an hourly basis. You can generally expect to spend a minimum of $2,500 for an agreement.

Mediation

Is divorce mediation right for me?

Mediation of family law disputes is often a very good way to resolve your family law matter. You still need to make sure that you have full information about income, assets and liabilities and you will need to obtain independent legal advice on any settlement tentatively reached in mediation. You can do mediation with or without a lawyer present.

What to look for in a family law mediator?

When looking for a family law mediator, you should ensure that they are accredited with the Law Society of BC as a family law mediator. You can do this my looking up the person’s name on the Law Society of BC website.  If they are accredited it will show on their information. You also will want to hire a mediator that has significant family law practice experience in addition to being trained as mediator. Rain Henderson has 30 years of family law litigation experience and is an accredited family law mediator.  Sonia Kainth has 12 years of family law experience and is also an accredited family law mediation in addition to being a Collaborative Lawyer.

When is divorce mediation NOT recommended?

If you have concerns about incomplete or misleading disclosure of income, assets and liabilities, or if you have concerns about family violence that cannot be addressed in how the mediation is done, mediation may not be the best choice for you. Talk with your lawyer or mediator if you have any of these concerns prior to embarking on mediation.

What are the pros and cons of mediating a divorce?

Mediation of family law disputes is often a very good way to resolve your family law matter.  You still need to make sure that you have full information about income, assets and liabilities and you will need to obtain independent legal advice on any settlement tentatively reached in mediation. You can do mediation with our without a lawyer present.

The downside to mediation is that any tentative settlement is not binding on the other side until a mediation agreement is formally signed, preferably with the benefit of independent legal advice.

How much does mediation cost in BC and who pays the mediator?

Mediators range in fees depending on their level of experience. Most accredited family law mediators in Vancouver charge around $400 to $500 per hour.  Each person usually puts up 50% of the mediators retainer which is calculated as about 10 hours of time.

 

Is mediation legally binding?

If you end your mediation with a final signed agreement, after full and complete disclosure of income, assets and liabilities, and both you and your spouse have obtained independent legal advice on the agreement before signing, your mediated settlement will be binding.

Parenting Agreements

Do I have to have a parenting agreement in BC?

Even if you have a really good relationship with your former spouse, it is a very good idea to have a parenting agreement in place. Things change and often, the introduction of a new partner can derail even the best co-parenting arrangements.  Having the parenting arrangements in an agreement will allow you to enforce the agreement if things go sideways.

After separation it is good idea to put your parenting arrangements into a parenting agreement or in a separation agreement.  This document can be provided to schools, doctors and other third parties that need to know who has parental authority to make decisions about the children.

If you are not able to reach an agreement on parenting, you will need to get a court to make orders on parenting.

What if my Ex won’t participate in a parenting agreement?

If you cannot get your partner to negotiate a parenting agreement, you can apply to court for orders which will provide for parenting arrangements, decision making protocols and support.

What happens if my Ex doesn’t follow our parenting agreement?

If you have an agreement or court order that provides for a parenting agreement that is not being followed by your former partner, you can apply to court to enforce that order or agreement. Fines can be levied against parents that do not follow agreements or orders. In extreme cases, the parent can be found to be guilty of contempt of court and put in jail for breaching parenting orders.

At what age can children decide which parent to live with?

Generally speaking, once a child turns 13, their wishes are going to be considered in parenting arrangements.  The BC Family Law Act provides for a court to consider the wishes of the children in determining what is in their best interests but younger children are less likely to have a determining role.  The decision of a child on parenting must be made without influence by the other parent.  The maturity of the child will be considered.

What is a parenting plan?

A parenting plan is a very comprehensive agreement that sets out how you and your former spouse are going to deal with all matters regarding your children. It can include how decisions are made, how disputes are resolved and what amount of time the children spend with each parent.

Parenting plans can be negotiated with the assistance of lawyers or child therapy experts

Pensions

What happens to pensions in a divorce in BC?

If you are a common law or married spouse in BC and you separate, you are presumptively entitled to share in your spouse’s pension earned during the relationship. Pension earned before the commencement of the relationship is not included in the division.

How is pension value calculated for divorce in BC?

Pensions are divided under Part 6 of the Family Law Act.  Depending on the type of pension you have, the value of the pension payment is usually determined by the Pension Administrators once they have been given information about the entitlement period for division. The entitlement period is from the date of marriage or cohabitation or when contributions to the pension began, which ever is earlier, to the date of separation.

 

What happens to pensions if we weren’t married when we separated?

Pensions for unmarried common law spouses in BC are divided under Part 6 of the BC Family Law Act in the same way for married spouses.

 

Is my Ex entitled to half my pension?

Generally speaking, your Ex will be entitled to an equal share of your pension that was earned during your relationship (common  law or married). The exact amount of the payment is usually done by the Pension Administrators.  You need a court order or agreement to ensure that the pension is divided properly.

Can my Ex claim my pension even if we were divorced a long time ago?

If you are divorced, a former spouse has two years from the date of divorce to seek a division of the pension. If they have not applied for a division within that 2 years, then they are statute barred from bringing a claim unless the court grants them permission to file a claim after the time limit has expired. Whether that is granted will depend on the reason for not making the claim in time and how long has passed since the divorce order was granted.

Pre-nuptial Agreements

Are prenups enforceable in BC?

Generally speaking, properly drafted and executed pre-nuptial agreements are legally binding in British Columbia.

Pre-nuptial agreements could be set aside by a court if:

  • There has not been full disclosure made about assets, liabilities and income
  • One spouse took improper advantage of the other spouse’s vulnerability, including their ignorance, need or distress
  • One spouse did not understand the nature or consequences of the agreement – for example, no legal advice has been given to the person on their rights and obligations under the agreement
  • The agreement operates so unfairly that a court will want to set it aside

If you are thinking about a pre-nuptial agreement, you will need to make full disclosure of your assets, liabilities and income as part of the negotiation process.  Your partner will need to obtain independent legal advice on the agreement prior to signing and it is best if that lawyer provides a Certificate of Independent Legal Advice which confirms that:

  • They reviewed the agreement with the other side
  • They provided the other side with legal advice on the agreement and how it departs from the Family Law Act or Divorce Act
  • They confirm that the agreement was signed by the other side of their own free will and not under any duress or pressure from the drafting party.

 

What’s the difference between a cohabitation agreement and a prenup?

A cohabitation agreement and pre-nuptial agreement are basically the same thing. Most lawyers draft cohabitation agreements to continue to apply if you get married. A pre-nuptial agreement can be more precise and take effect on the date of intended marriage.  The terms in both agreements are generally the same and the same factors to ensure that the agreement is upheld on separation apply.

Do I need a pre-nuptial agreement in BC?

If you want to protect property that you are bringing into a marriage, you should consult a lawyer to see if a pre-nuptial agreement is right for you. If you do not have a pre-nuptial agreement, if you separate, support and property division will be dealt with under the BC Family Law Act and the Divorce Act.   That may mean that your ex will share in property that you wanted to keep separate from them on separation or divorce.

 

What happens if I don’t have a prenup?

If you don’t have a pre-nuptial agreement, in British Columbia, you will have your property division and support obligations determined under the BC Family Law Act and the Divorce Act.

What happens if I was pressured into signing a prenup?

Undue influence and duress are two common law factors that are considered by a court when someone is seeking to set aside a pre-nuptial or cohabitation agreement. Generally, it is not enough to feel pressure to sign to keep the relationship going, or the wedding date preserved.  The undue influence or duress must be significant in order for it to be a determining factor in setting aside an agreement.

What happens if I sign a “prenup” AFTER we are already married?

Very often “prenups” are not signed before the actual date of marriage. It still is a legally binding agreement between you and your spouse that determines entitlement to family property and support.

Property Division

What happens to pensions in a divorce in BC?

If you are a common law or married spouse in BC and you separate, you are presumptively entitled to share in your spouse’s pension earned during the relationship. Pension earned before the commencement of the relationship is not included in the division.

Who gets the house in a divorce in BC?

There is no presumption that anyone gets the house in a divorce. If the house is owned, it may be that one of you can buy the other out of their interest based on an appraised value. If a buyout isn’t possible, then the house is usually sold.

Before a final settlement or trial order, the court can order who gets to live in the house.  There may be circumstances where a court will give one party exclusive use and occupancy of the house. This is done in cases where continuing to live together in the house is a practical impossibility. It is often done in cases where family violence is an issue.

Is a house split 50/50 in a divorce?

There is no presumption in British Columbia that the family home is divided equally on a divorce or separation. How the house is divided will be based on whether there are any excluded property considerations on that asset.

Property division in BC is done under the Family Law Act.  Generally, property is divided equally unless you can claim that part of your property is “excluded”.  In simple terms, excluded property is:

  • Property that you have brought into the marriage or relationship that still exists at separation or can be traced into another asset
  • A gift or inheritance received during the relationship that still exists at separation or can be traced into another asset
  • Property that is acquired after separation and was not acquired with property acquired during the marriage or relationship

If you have excluded property, then the Family Law Act says that your spouse will only be entitled to 50% of the growth on that property.

Property is valued at the time of trial or settlement.

A court can deviate from the equal division only in cases where an equal division would be “significantly unfair”.  This is a very high threshold test.

How are property and assets divided on divorce in BC?

Property division in BC is done under the Family Law Act.  Generally, property is divided equally unless you can claim that part of your property is “excluded”.  In simple terms, excluded property is:

  • Property that you have brought into the marriage or relationship that still exists at separation or can be traced into another asset
  • A gift or inheritance received during the relationship that still exists at separation or can be traced into another asset
  • Property that is acquired after separation and was not acquired with property acquired during the marriage or relationship

If you have excluded property, then the Family Law Act says that your spouse will only be entitled to 50% of the growth on that property.

Property is valued at the time of trial or settlement.

A court can deviate from the equal division only in cases where an equal division would be “significantly unfair”. This is a very high threshold test.

Representation in Court

Do I need a lawyer for family court in BC?

You do not need a lawyer to appear in court in BC. If you chose to represent yourself in court, you will need to make sure that you know the family law Court Rules as well as the law that applies.

 

How much does a family lawyer cost in BC?

The hourly rates of family lawyers in BC depend on how long they have been practicing law. The more junior the lawyer the cheaper the hourly rate. Generally speaking, the hourly rates will range from $175 to $750 per hour.

How do I find the right family lawyer for my case in BC?

Hiring the right family lawyer is a critically important part of your divorce or separation process. Most family law lawyers offer a free or paid consultation. This allows you to get a feel on whether you would be a good fit with each other. You need to trust your lawyer and your lawyer needs to trust you. If you would like to set up a free consultation with one of our lawyers please submit our contact form and we will reach out to set up in in-person or Zoom consultation with you depending on your preference.

 

Separation

Can you be legally separated but still live in the same house?

This is commonly referred to as living separate and apart but under the same roof.  Often, the cost of moving into another residence on separation is prohibitive and both spouses have to continue to live in the same home while they work out their case.  So long as you do not resume marital relations and generally spend as much time apart as possible, your separation date will be the date on which you decided to separate.  This is important as you need to be separated for a year before you can apply for a divorce.

Do I need a separation agreement to get a divorce?

You do not need a separation agreement to get a divorce but it is generally what occurs. If you have children, you are going to need to have some form of separation agreement that deals with child support in place before getting a divorce.  A court will not grant a divorce without proper arrangements being in place for the support of children.

Separation Agreements

What constitutes a legal separation agreement?

A separation agreement is a contract between you and your spouse. Under the BC Family Law Act, all that is required to be a separation agreement is for the document to be in writing and for both parties to have signed it and have their signatures witnessed.

Separation agreements should be negotiated after each party has had full disclosure of all assets and liabilities and know the income of the other person.

 

Do I need a separation agreement to get a divorce?

You do not need a separation agreement to get a divorce but it is generally what occurs. If you have children, you are going to need to have some form of separation agreement that deals with child support in place before getting a divorce.  A court will not grant a divorce without proper arrangements being in place for the support of children.

When do I need a separation agreement in BC?

Separation agreements are matrimonial settlements made outside of court proceedings. You can negotiate a separation agreement any time after separation.

If you cannot negotiate a separation agreement, then you are likely going to have to have a court make the determination of how your property is divided and what support obligations are in place.

Vancouver Family & Divorce Lawyers | Henderson Heinrichs LLP