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Vancouver and Edmonton Family Law Blog

What you need to know about Marriage, Prenuptial and Co-habitation Agreements

The terms "prenuptial agreement," "cohabitation agreement," and "marriage agreement" all refer to a similar type of agreement, an agreement that sets out the rights and responsibilities of spouses if they separate at some point in the future. There are many reasons that people enter into these types of agreement.  While it is often the case that one person has significantly higher assets that they want to protect, it is also frequently the case that these agreements are for other reasons such as protecting an asset that is owned jointly by multiple members of a family, or parties have similar assets and they just want to preserve their separate ownership of specific assets.  There are many reasons to want an agreement that sets out what will happen in the event you and your spouse should separate, and there are a wide variety of potential agreements that can be tailored to your circumstances.

Parenting over the holidays: Your rights and what's right for your children

Co-parenting with your ex-spouse in the month of December can be like navigating a minefield.  There is something about the emotions of the season, the emphasis on family time, the time off school, the expectations of extended family members, and the importance of certain days during this month that make sharing parenting time in December really difficult for some families.  The tension that parenting over the holidays creates impacts the children more than some parents realize.As family lawyers we try to check in with our clients in September or October to find out if they need any assistance working out parenting time in December.  If you have waited until the second week of December to figure out parenting time on the 25th, for most cases it will be too late to start the process of bringing on an application in court in time for Christmas.   Remember that the court is closed to all but emergency applications from December 17 to January 3.That said, it’s almost never too late to reach a negotiated agreement with your ex regarding parenting over the holidays.  A parenting plan can be comprehensive and apply all year, or it can be limited to a certain period of time.  Having a plan for the holidays in writing is very helpful to remind the parties of what they agreed to.  It can help reduce conflict between the parents, which in turn helps the kids have a stress-free, enjoyable holiday with both sides.  A parenting plan that is signed by both parties in the presence of a witness is enforceable, meaning that if one of the parties breaches the plan the other can seek relief in court by way of make-up-parenting time, fines, and other sanctions.The Department of Justice has some useful resources on its website to assist people in developing their plans for parenting over the holidays. For a Parenting Plan Checklist, click here: http://justice.gc.ca/eng/fl-df/parent/ppc-lvppp/index.html.  We recommend checking in with a family lawyer for independent legal advice before entering into a parenting plan. 

Are Veteran's Affairs Pensions considered Income for Child and Spousal Support?

The question of whether Veteran's Affairs pensions and Veteran's Affairs disability pensions received by military personnel for their injuries or disabilities suffered in the line of duty should be characterized as income for child and spousal support claims appears to be an emerging area of contention in family law. Courts across the country have treated this question in strikingly different ways. Interestingly, the source of controversy is not a family law case. In Manuge v. Canada, 2012 FC 499, the Federal Court dealt with whether veteran's disability pensions could be deducted as "income" under the Pension Act.

An Update on Joint Tenancy and Confusion Regarding Excluded Property under the Family Law Act

We have previously written about excluded property and then about emerging confusion regarding Excluded Property under the Family Law Act. As a general principle a spouse who brings an asset into a relationship is entitled to keep the value of that asset when they brought it into the relationship. We call this "excluded property" because it is excluded from the usual 50/50 division. The question is what happens if they made their spouse a joint owner of that property.

What Does it Mean to be a Common-Law Spouse?

What does it mean to be a “common-law spouse”?More than ever couples are living together before marriage, and after a certain period of time, we tend to say that they are “common-law spouses”.  But what does it mean to be “common-law” with someone?  How long does it take to be common-law spouses with your partner?First, the term “common law spouse” is a misnomer.  What regular folks tend to mean by it is that two people are living together in a marriage-like relationship, in a way that has legal consequences, but they are not married.  However, the Common Law in Canada (which is the law developed over time by judges deciding cases,) does not actually put any legal significance on two people in a relationship living together.  Rather, it’s legislation (laws passed by our elected representatives) that determines whether unmarried partners are “spouses” by law.In Canada, there are various laws that have different tests for common-law spouses.  The tests differ across the provinces and according to area of law.  For example, the length of time you need to cohabit before you are a spouse is different in Ontario and British Columbia, and the test for common-law spouses is different in the income tax context than the family law context.In British Columbia, pursuant to section 3 of the Family Law Act, you are considered a common-law spouse for the purposes of entitlement to spousal support, property division, and pension division if you have lived together in a marriage-like relationship for at least two years.  However, if you have lived with a person in a marriage-like relationship for less than two years, but you have a child together, then you are considered a common-law spouse for the purpose of spousal support but not property and pension division.  If you are cohabiting with someone, but the relationship isn’t “marriage-like”, then you aren’t spouses and there is no entitlement to spousal support or property and pension division.Whether a relationship is marriage-like is a surprisingly complicated question, and it depends on the individual facts of each case.  If you have questions about whether you are in a marriage-like relationship, and the legal consequences arising from it, the best thing to do is to have a consultation with a family lawyer.

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


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