Help, My Spouse Wants to Kick My Out of the Family Home!

Is it legal in BC for your spouse to kick you out of your shared home and assume exclusive possession of said home?

The answer is technically yes but, you would have to meet very specific conditions. The court does not easily grant an order ejecting someone from their own home.

To ask for exclusive possession of the family home, your spouse would need to provide clear evidence that it is a practical impossibility for the two of you to continue living together in the home. Among other things, practical impossibility may mean that continued shared use of the home would result in cruelty or assault to each other or even damage to your children’s welfare.

If you have been living separately for some time under the same roof, it would be especially difficult to obtain an order for exclusive possession of the home, especially if you have children who would benefit from having both parents living in the home.

If your spouse manages to prove that shared use of the home is a practical impossibility, he/she would then have to prove that they should be the one occupying the home. To determine whether or not to give the order, the court will consider things like whether your spouse is the primary caregiver of your children, your spouse’s financial situation, the relationship each of you have to your children, and yours and your spouse’s behaviour and overall conduct towards each other and your children while living in the family home.

If you or a loved one have separated from a spouse and are seeking advice regarding who gets to keep the family home, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

Challenging a Prenuptial Agreement

A prenuptial agreement, also known as a marriage agreement or a cohabitation agreement, is an agreement that you enter in before you marry your spouse or before cohabitation with a significant other.

This agreement covers things like property, debt, spousal and child support, and is a guideline as to how you will split your assets and how much you owe the other person (or vice versa) should you and your spouse separate in the future. With a prenuptial agreement, you can prevent further potential conflict during the already emotionally charged time of separation.

But what if, when the time comes, you do not agree with the prenuptial agreement that has already been set? Is there anything you can do about it?

The short answer is yes.

It is definitely possible to challenge a prenuptial agreement in BC. You will first have to file it with the Court. Under section 93 of the Family Law Act, the Court may either set aside a part or all of the agreement and replace it with a new order, provided that one or more of the following circumstances existed when you and your spouse entered into the agreement:

a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;
a spouse did not understand the nature or consequences of the agreement;
other circumstances that would, under the common law, cause all or part of a contract to be voidable.

However, the Court may also decline to replace the prenuptial agreement with an order that is substantially different from the terms of the agreement. It all depends on your specific circumstances under which you and your spouse signed the prenuptial agreement.

If you or a loved one are seeking to challenge a prenuptial or cohabitation agreement, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

My Spouse Isn’t Paying Enough Child Support!

So you and your spouse have split up and you’re thinking that you should be owed more child support than is currently being paid.

In BC, child support is calculated using the Federal Child Support Guidelines along with the parent’s gross income. But what happens if your spouse tries to pay less than what they owe by hiding their income? Or if they are deliberately earning less than what they are capable of? What if your spouse tries to get out of paying child support altogether?

In all of these cases, the court may “impute income” to your spouse. Once the court determines that your spouse is underemployed or intentionally unemployed and not seeking to obtain employment, your spouse’s income will be imputed and the court will order them to pay the appropriate amount of child support. The court imputes income on an evidentiary basis, based on what it believes your spouse is capable of earning or what they actually make.

To determine if your spouse is earning to capacity, the court will apply the following principles:

Parents who are healthy and can work have a duty to seek employment
Reasonable income-earning capacity will be based on consideration of a parent’s age
Limited experience and skills do not justify a failure to pursue employment
Persistence in un-remunerative employment or unrealistic career aspirations will not be an excuse
Self-induced reduction in income will not justify the avoidance of child support obligations

The following are some more reasons under section 19 of the Federal Child Support Guidelines for which the court may decide to impute income to your spouse:

The spouse is exempt from paying federal or provincial income tax
The spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada
The spouse’s property is not reasonably utilized to generate income
The spouse unreasonably deducts expenses from income
The spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust

Remember, the court will need to have sufficient evidence from you to justify imputing income to your spouse.

If you or a loved one are seeking to claim child support and/or to have income imputed, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

Escaping an Abusive Spouse

If you find yourself in a situation where you feel the need to escape from an abusive spouse, you may be wondering what steps you’ll need to take. How can you protect yourself? Your children?

There are a few possible paths you can take depending on your situation.

Report to the Police

If you think your spouse poses an immediate danger to yourself or your children, call the police right away. The police will take certain steps to ensure that you and others around you stay safe, including recommending criminal charges, a Peace Bond, or that you seek a Protection Order. The police may also have your spouse ordered to pay a fine or be placed on probation.

Another thing the police can do to ensure your safety is to connect you to community services that can provide assistance. For instance, there are services that may be able to help you find temporary emergency shelter while you sort out a safe accommodation for yourself and your children.

Seek a Peace Bond

You can seek a Peace Bond under the Criminal Code if you are looking to get protection against an individual. Under a Peace Bond, your spouse will have to obey certain conditions (for example, not contacting you for a certain period of time). If they obey the conditions of the Peace Bond, they will not have a criminal record. However, if they do not obey the conditions, they may be sent to trial along with an additional charge of breaching the Peace Bond.

Apply for a Protection Order

You can apply for a Protection Order under the BC Family Law Act. A Protection Order lists a number of conditions that your spouse must obey, and can also require the police to remove your spouse from the home, escort them while they remove their personal property from the home, or seize their weapons. A Protection Order can also require your spouse to report to the court.

Apply for a Conduct Order

If you feel that your situation does not need to escalate to the point of requiring a Peace Bond or a Protection Order, you can apply for a Conduct Order, made under the Family Law Act. A Conduct Order is similar to a Protection Order in that it sets out rules and conditions for your spouse to follow, but where it differs is in the consequences of breaching the order. Unlike a Protection Order, if your spouse breaks the terms of a Conduct Order, you cannot immediately rely on the police to enforce it. Instead, you will have to apply to the court again to obtain another order.

If you are in an abusive relationship and are seeking legal advice or assistance in keeping yourself and your loved ones safe, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby British Columbia at andrew@resolutionslawcorp.com or 778-372-7170.

Who Keeps the Ring After Separation?

Separation from your spouse or fiancé(e) can be a very testy time in your life and you may have many questions during this time, including: who keeps the ring?

In British Columbia, according to the BC Family Law Act, the gift of an engagement ring is considered a conditional gift. This means that it is gifted with the expectation that you and your fiancé(e) will marry each other at some point.

Before Marriage

However, if you separate before you end up getting married to each other, you fail to meet the condition, and the ring would have to be returned to the person who gifted it.

After Marriage

If you are already married when you separate, then the recipient of the ring would get to keep it. This is because having married, you will have met the condition associated with the gift of the engagement ring.

Exceptions?

There may be exceptions, depending on your unique situation. In the past, there has been a case in BC where the recipient of the engagement ring was entitled to keep it despite the fact that the couple hadn’t been married yet, because she maintained that her then fiancé had given it to her as an absolute gift.

Another exception would be if the recipient had paid for their own engagement ring. In both of those cases, the recipient keeps the ring even though generally they would have to give it back as it is normally a conditional gift according to the BC Family Law Act.

As you may see, even the simple question of “Who keeps the ring?” can elicit quite a complicated answer.

If you or a loved one have separated from a relationship and require assistance in dividing your assets, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

5 Reasons Why DIY Wills Are a Bad Idea

You won’t realize your mistakes until it’s too late
Making a do-it-yourself Will means you won’t have a legal professional looking over your Will, checking to see if it is up to standards and that it accurately reflects your wishes.

If you make a mistake anywhere in your Will or if your Will is inaccurate, incomplete, or imprecise in any way, no one will know until after you die when your Will undergoes the probate process in order to be validated.

By then, you will have no way to clarify or correct anything in your Will, and this may cause your loved ones a lot of unnecessary grief and hassle and even additional expenses.
You don’t know what you don’t know
Without a proper legal background, Wills can be complicated. Although you may have an idea of what you want to put in your Will, the truth is you may not know enough about the specific case law and legislation that you need to refer to when making a valid and accurate Will.
You risk neglecting the ‘what if’ scenarios
Simple Will kits usually do not cover all the different scenarios that could happen. What if your main beneficiary is involved in an accident at the same time as you? What if your Executor is no longer capable of performing the tasks? What if your chosen guardian for your children becomes unavailable? A lawyer can go through the ‘what if’ scenarios with you and ensure that everything is accounted for.
They cannot account for your unique needs
Every person has their own specific needs and wishes. A generic Will kit can’t fit everyone’s bills perfectly. If you have a specific wish that you want to include in your Will, you may not know exactly how to put it in there such that it will be carried out properly and without complications.
They are an additional hassle that’s not worth the ‘savings’
Although the cheap costs of a DIY Will may be very tempting, there are many hidden dangers that you may not realize. It will provide you a peace of mind going to a lawyer to have your Will done accurately than to do it yourself and risk making mistakes that will have costly and challenging consequences.

(Click here to find out what happens if you do not have a will)

If you or a loved one is in need of advice regarding Wills or wish to have assistance in making one, consult Vancouver and Burnaby Wills & Estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Why We Are Ditching the Term “Custody”– Parental Responsibilities in BC

No more “custody”?
2019 brings a change to family laws in Canada, specifically regarding parental responsibilities in the Divorce Act. The goal of this change is to improve the act so that it promotes the best interests of the child.

One of these changes includes removing the term “custody” while introducing the concepts of “parenting time” and “decision-making responsibility”.

What does this mean? Essentially, the intention is to encourage parents to focus more on the needs of their children. By removing this term, we eliminate a winner-loser mentality (where the “winner” gets custody of the child). We also remove the negative association that “custody” commonly has with the idea of police detention.

What exactly is “parenting time”?
In the place of “custody”, we now have “parenting time”. Parenting time is defined as the time that a child spends with each guardian (determined by an agreement or order).

During this time, the guardian needs to exercise parental responsibility. See below to find out what parental responsibilities includes under the law.

What are your legal responsibilities as a parent?
Some examples of parental responsibilities under the BC Family Law Act:

Making daily decisions for your child (making sure they are supervised and cared for)
Making major decisions for your child (i.e., health care, school, extracurricular activities, religion, language)
Deciding where your child will live (and with whom)
Applying for passports, licences, etc. for your child
Exercising any other responsibilities necessary to nurture your child’s development Making daily decisions for your child (making sure they are supervised and cared for)

When you separate with your spouse, you can share or divide your parental responsibilities in any way that would work best for your child.

If you or your spouse fails to exercise your parental responsibilities, the other person could potentially apply to court to get an agreement enforced or an original order changed.

If you cannot settle on an agreement regarding parenting time or have concerns about parental responsibilities, consult Vancouver & Burnaby Family Law and Custody, Access, Parenting Time lawyer/attorney Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

What’s an Examination for Discovery?

If you have a proceeding that’s going to trial, you may encounter a step in the process called an Examination for Discovery (XFD). While examinations for discovery are not mandatory, they can be very important in respect to your trial.

So, what exactly is it? An examination for discovery is a meeting where a party asks the opposing party questions about the issues in dispute. Since these meetings are under oath and will be attended by a court reporter who will prepare a transcript that can be used at trial, this is a great opportunity to gather more information from the opposing side, explore contradictions in their facts, and gauge what their conduct will be like at the trial.

Some examples of the things that can be done at an examination for discovery are:

Pin down admissions
Discover additional facts you may need for trial by asking questions about documents
Discover the strengths and weaknesses of your case to prepare for trial
Make requests for documents
Narrow down your issues
Get a sense of how the witness or their lawyer will act at the trial

Because everything you say will end up on the transcript and could potentially be used as evidence in trial, it is vitally important to be well prepared for an examination for discovery. This meeting is also one of the first opportunities to meet the lawyer of the other party, so it is important as well to make a good impression.

If you need advice regarding Examinations for Discovery, consult Vancouver and Burnaby family law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

What’s a Judicial Case Conference?

In any family law proceeding, it is almost always mandatory to arrange a Judicial Case Conference (JCC).

But what exactly is a Judicial Case Conference? A JCC in British Columbia is a private and informal meeting between the parties, their lawyers, and a Supreme Court judge or master. It’s an opportunity to discuss and resolve some or all of the issues regarding your case without having to go through further litigation and trial.

What happens in a Judicial Case Conference?

JCCs are confidential and held off the record. Although there is a recording made of the proceeding, you are not allowed to have a copy of the recording without the judge or master’s permission.

The following are examples of what the judge or master may do at a JCC:

Identify issues and explore how they may be resolved
Make orders to which all the parties consent
Refer you to a family dispute resolution professional or a family justice counsellor
Reserve a trial date
Give a non-binding opinion on the probable outcome of a hearing or trial

Outcomes of a Judicial Case Conference:

In a best-case scenario, a settlement would be reached with the judge or master making a consent order on the spot, thus ending the hearing and saving you lots of stress as well as money and time that would otherwise be spent on further legal action.
However, if further legal action and trial is necessary, the JCC provides an opportunity to set a plan for the litigation that will ensure the trial is heard and a decision is made in a just and timely manner.

A Judicial Case Conference is a very important stage of any family law litigation in BC and should be used wisely and efficiently. It always helps to come into a JCC well prepared, with a plan or with strategies as to how to resolve your case.

If you need advice regarding Judicial Case Conferences, consult Vancouver and Burnaby family law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

What is a Will? What Happens if You Don’t Have One?

A Will is a legal document that takes effect upon your death. The main purpose of a Will is to say who will get your property (land and personal possessions) when you die. It can appoint a new guardian for your children if you have any, as well as appoint a chosen executor who will ensure your debts are paid, your property is protected, and your wishes are carried out.

No Will, No Way?

Dying without a Will is referred to as “dying intestate”. What happens if you die intestate? Contrary to popular belief, the government is not automatically entitled to your estate in this case.

Without a Will, there is no executor so someone is needed to administer your estate. In British Columbia, the Wills, Estates and Succession Act (WESA) determines how your assets are to be divided and who administers your estate for you.

According to WESA, the distribution rules are as follows:

If you have a spouse but no descendants:
- your estate will be distributed solely to your spouse

If you have a spouse and descendants:
- household furnishings and a “preferential share” of your estate will go to your spouse

If you have descendants or relatives but no spouse:
- Your estate will be distributed to your descendants

(In this context, a “spouse” is defined as someone you are married to, or with whom you have been living in a marriage-like relationship for at least 2 years.)

Without a Will, you lose control over who gets your estate when you die, and you give up the right to appoint a guardian of your choice for any young children you may have. Your family may also have to deal with delays, extra expenses, and inconvenience.

To make sure your wishes are clearly and precisely communicated, it is important to make a Will. With a Will, you can decide how to have your property and assets distributed and by whom when you die instead of having them distributed according to BC law. Although you can use a kit to write your own Will, it’s a good idea to get help from a lawyer to make sure your Will is legal. If your Will isn’t considered legal, it can create a lot of problems for your heirs.

If you or a loved one is in need of advice regarding Wills or wish to have assistance in making one, consult Vancouver and Burnaby wills & estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.