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Vancouver and Edmonton Family Law Blog

Should I stay or can I go now? An update on parental mobility

What happens when a divorced parent wants to move with their child?

This is one of the hardest questions in family law. As with all court decisions about parenting, judges are supposed to make an order that reflects the best interests of the child, unfortunately, in the context of a parent moving away, that is not a lot of guidance to go on. In 1996 the Supreme Court of Canada decided Gordon v. Goertz, [1996] 2 SCR 27. In that case, the Supreme Court weighed whether a mother who had custody could take her child to Australia, or if custody should be awarded to the father who was staying behind. Although they were not explicit that this was the correct approach, the Supreme Court of Canada only considered two scenarios, go with mom or stay with dad.

Why prenuptial agreements are good for both of you.

You may have heard that prenuptial agreements are a good way of reducing conflict if and when a couple separates. If you've been through a break-up you will remember that emotions run high and it's not always easy to be objective, rational or fair when it comes to disentangling. Now throw in years of living together with the joint property and financial decisions that come with life as a couple with or without children.  This is why it makes good sense to talk through property and financial issues when you each want what's best for the other. However, raising this issue with one's spouse can seem daunting. Your spouse may think that you want a prenup because you are not committed to the relationship. Furthermore, a prenuptial agreement generally needs to be drafted and reviewed by lawyers to be binding, and so it also costs money. However, there are good reasons why both parties should seriously consider a prenuptial agreement. Here are some talking points to help make your discussion easier.

Why do I need a lawyer for a separation agreement if my ex and I have already agreed on everything?

Not every separation is immediately conflict-ridden. A couple that is separating can sometimes discuss the issues of parenting, child support, spousal support (if any) and property division calmly and informally between themselves. They may even prepare their own written separation agreement based on some models from the internet. Yet when they go see a lawyer to have the agreement signed, the lawyer tells them that each of them should receive "independent legal advice" from their own lawyer before signing that agreement. Furthermore, that lawyer might also tell them that some amount of financial disclosure needs to be exchanged between both sides before that "independent legal advice" can be provided. The lawyer may even strongly suggest that parts or all of the agreement be rewritten or at least reworded. Naturally, that all involves legal fees. So why should you go see a lawyer to sign up a separation agreement if you and the ex have already figured out everything yourselves? Here are a few important reasons why it may be wise to consult a lawyer:

Do I have to pay more spousal support if I make more money after separation?

Many people change jobs at some point. If a spouse was ordered by the court to pay some amount of spousal support to his ex and he later loses his job and ends up with less income, he can often successfully ask the court to decrease how much spousal support he is to pay. What if the payor spouse's income went up after separation? Can his ex ask the court to make him pay her more spousal support as a result? A lot would depend on whether the court thinks that the recipient spouse contributed directly or indirectly to the payor spouse's increase in income. What exactly constitutes "indirect" contribution to increases in income after separation can be tricky and depends a lot on the details of the case.

Estate planning: Who inherits from you if you get divorced?

When you have been married for some time, you may want to leave your spouse a large share of your estate in your Will. However, if that relationship goes sour, it's likely your feelings about who should inherit your assets will change. Depending on the law in the province where you live, you may need to do some additional estate planning to make sure your assets are protected and distributed according to your intentions.

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


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