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Vancouver and Edmonton Family Law Blog

Common Law Property Division Changes Coming

On November 14, 2011, the Provincial government introduced Bill 16, which features a comprehensive revamping of the property law regime in the province.  One significant change is that Property Division, which did not previously apply to “common law” spouses under part 5 of the old Family Relations Act, will now apply “common law” spouses.The bill has not yet been passed, and of course there may be amendments or it may not pass at all.  However, now is the time to take a serious look at your situation if you are in a “common law” relationship.Of particular relevance to those in “common law” relationships is the proposed transitional section 252 of Bill 16.   Section 252 provides that if you have an executed agreement regarding property, or if you have started a court proceeding regarding property division, before the act comes into effect, then the old Family Relations Act will apply to your case.  If you are in a common law spouse with the lion’s share of the property and considering separating, get to a lawyer to discuss your options as soon as possible.  Delaying could be very costly.

Who will care for my children when I'm gone?

When there is a separation or divorce, estate law and family law are very much intertwined with one another.  At Henderson Heinrichs we have found that our clients are often justifiably concerned with who will care for their children in the event that the custodial parents pass away.  The answer is not straightforward and there are many factors to consider.  Below are some of the applicable provisions that you may have to consider when addressing this issue.

Agreements are meant to be followed

At Henderson Heinrichs, we regularly negotiate and conclude separation agreements for our clients.  Parties cannot take the provisions of these agreements lightly.  When you reach an agreement with your ex-spouse, you had best stick to it.  That’s what the court concluded in the recent Supreme Court of British Columbia case of Owen v. Owen, 2011 BCSC 1284.In Owen, the court was faced with non-payment of spousal support by a wealthy husband, in contravention of the terms of a separation agreement.  The court found that, in addition to losing the money itself, the wife lost certainty, security, and the ability to budget, invest and control her own financial resource, all of which she had bargained for in the agreement.Because of this, the court agreed that the Agreement had been repudiated by the husband, and on the basis of the action brought forward, that the wife accepted that repudiation.  The result was stark:  the husband was required to pay back the arrears that had accrued under the terms of the agreement to the date the repudiation was accepted.  Further, the wife was freed from her obligations under the agreement and was able to once again pursue a reapportionment of the very substantial family assets, something that she had given up under the agreed upon terms.  Finally, as the agreement was no longer in effect, the husband was once again required to pay a higher, interim, spousal support sum which had been ordered prior to the Agreement being reached.The wife, of course, did not have to accept the repudiation, and she could have sought a far more common remedy; namely, that the agreement be enforced.  But the choice was hers, and it serves as a valuable reminder that the person breaching the agreement will rarely receive benefit for that breach from the court.

What does it take to Separate?

At Henderson Heinrichs, we are often asked to seek a determination that the spouses in a marriage have no reasonable prospect of reconciliation.  Normally, this is not a particularly contentious issue.  However, there are circumstances in which a declaration such as this have far-reaching consequences. In Wolfman-Stotland v. Stotland, 2011 BCCA 175, (CanLII) the court grappled with the question of a spouse's capacity to separate.  In this case, the claimant wife and the respondent husband were  92 and 93 years old respectively, and the wife applied for a  s.57 declaration that there was no reasonable prospect of reconciliation.  In opposing that application, the Husband sought and received an order that a doctor provide an opinion as to the Wife's capacity to make the  - though the doctor found that the wife had the capacity to instruct counsel regarding the financial aspects of the divorce claimed, she "did not have the capacity to form the intention to live separate and apart from her husband" [at paragraph 14].  The Chambers judge defined the relevant issue as whether the wife had the ability to both manage her affairs and instruct counsel.  The Court found that she did not. The Court of Appeal disagreed.  Upon re-examination of the issue, the Appeal Court determined there should not have been a dual test.  The ability to manage ones affairs was determined to be a higher capacity than the one needed to instruct counsel and the court overturned the Chambers Judge's decision. The Husband's application to appeal to the Supreme Court of Canada was dismissed, and the test for the capacity necessary to separate therefore remains a very basic one.

What If No One Follows An Order?

In the recently decided case of Newton v. Luettger, 2011 BCSC 995, the court made an observation which, while simple, is also far reaching in its effects.  The case involved a 2005 trial custody order which provided that the parties would share roughly equal time with their two children.  The parties concurred at the hearing  that the equal division of care never occurred and that the mother regularly had the children in her care for greater than 60% of the time.  The mother sought a variation of the trial custody order, relying on the difference between the order and the actual care circumstances as a material change in circumstances. Mr. Justice R.D. Wilson stated found that, [9]     The argument advanced by the Claimant is based on the proposition that the failure to comply with the terms of an order is equivalent to "a change in the condition, means, needs or other circumstances of the child of the marriage...". To me, that is a novel proposition. No authority was cited in support of it. Absent binding authority, it is not a proposition which commends itself to me.

Document Disclosure

During the course of your matrimonial file you will be asked by your lawyer to produce a number of documents.  These will include personal documents relating to your finances, including but not limited to bank account statements, credit card statements and other what you could perceive as personal material that you may or may not want your estranged spouse to have access to.  In dealing with support issues, document disclosure with respect to income and expenses becomes relevant.  Often, innocent omissions with respect to the disclosure of documents can be used by the other side's lawyer as fodder to allege that you have failed to disclose or are guilty of blameworthy conduct giving rise to retroactive adjustments and corrections with respect to child or spousal support.  These are all things that you want to avoid like the plague.

Understand your legal options. Make informed decisions. Contact the family law lawyers of Henderson Heinrichs LLP

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