Family law in BC is governed by two different pieces of legislation. The federal Divorce Act (the “DA”) and BC’s Family Law Act (the “FLA”). The DA pertains to married spouses and the FLA is applicable to both married and common-law spouses and provides guidance about property division, parenting arrangements and support issues.

Who counts as a “spouse” in BC 

Under the FLA, people are spouses if they are married to one another or have lived in a marriage-like relationship for at least 2 years. For the purposes of the FLA, the term spouse includes a former spouse. The relationship between the spouses begins on the earlier of either the date on which they began to live together in a marriage-like relationship or the date of their marriage. Under the DA, people are only spouses if they are legally married to each other. In certain circumstances, a former spouse may be included under the definition of spouse for the purposes of the DA.

Property division basics 

Under the FLA, spouses are both entitled to family property and responsible for family debt and, on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common and is equally responsible for family debt. Family property on the date the spouses separate includes property that is owned by at least one spouse, or a beneficial interest of at least one spouse in property.

Property excluded from family property includes

• property acquired by a spouse before the relationship between the spouses began;
• inheritances to a spouse;
• gifts to a spouse from a third party;
• a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for loss to both spouses, or lost income of a spouse;
• money paid or payable under an insurance policy;
• excluded property that is held in trust for the benefit of a spouse;
• a spouse’s beneficial interest in property held in a discretionary trust to which the spouse did not contribute, and that is settled by a person other than the spouse;
• property derived from excluded property or the disposition of excluded property.

Parenting arrangements 

In family law there has been a shift away from using language like “custody” or “access” and a move towards using neutral language like “parenting time” and “parental responsibilities”. Under the FLA, parenting arrangements or contact with a child must be decided based on the consideration of the best interests of the child only. Only a guardian may have parental responsibilities and parenting time with a child. Generally, if a child’s parents are living together and they separate, each parent of the child is the child’s guardian. A parent who has never resided with their child is typically not the child’s guardian unless the parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or the parent regularly cares for the child. If a child’s guardian and a person who is not the child’s guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child only because of the marriage or marriage-like relationship.

Child and spousal support basics

Child and spousal support can be granted under the DA or the FLA. Under the DA, child and spousal support can be granted if a court, on application by either or both spouses, makes an order requiring a spouse to pay the support. The federal Child Support Guidelines dictate the amount of child support to be paid and the circumstances in which discretion may be used in the making of an order for child support, in addition to authorizing courts to make other determinations. These federal child support guidelines also address the determination of income and authorize a court to impute income for the purposes of the application of the guidelines. In making a determination about spousal support the court will look at factors such as the length of time the spouses cohabited; the duties of each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.

Under the FLA, each parent and guardian of a child has a duty to provide support for the child, unless the child is a spouse or is under 19 and has voluntarily withdrawn from the parents’ or guardians’ charge for reasons other than family violence. A stepparent does not have to provide child support for a child unless the stepparent contributed to the support of the child for at least one year. A child support agreement is only binding if the agreement is made after separation, or when the parties are about to separate. A court must at least consider the federal child support guidelines when making a determination about the amount of child support. When making a decision regarding spousal support, the court must consider the conditions, means, needs and other circumstances of each spouse. This includes the length of time the spouses lived together, the functions performed by each spouse during the period they lived together, and an agreement between the spouses relating to the support of either spouse.

Why “DIY” separation agreements are risky 

Separation agreements drawn up and entered into by parties without consultation with a lawyer are risky because the court may set them aside if they are not adequate. One example of this is, under the FLA, property division agreements may be set aside if the court finds that a spouse did not disclose property or debts, took advantage of the other spouse’s vulnerability, or did not understand the nature of the agreement.

The post Separation And Divorce In BC: Property, Parenting Time, And Support Basics appeared first on Nanaimo Law | Heath Law.

Two spouses each own property in only their name alone, and go back and forth between living in their respective properties together. These spouses are not each other’s primary beneficiaries. If one of the spouses passes away, leaving a Last Will and Testament which appoints a person other than their spouse as the executor of their estate, this could lead to a problem when the deceased spouse’s final tax return is filed. If the principal residence exemption (“PRE”) is claimed for the deceased spouse’s property for every year they owned it, this can have implications for the surviving spouse. Although claiming the PRE for every year the deceased spouse owned the property may mean that there would be no tax owing to the CRA on the capital gains from the appreciation of that property, this may not be the best course of action.

The Problem

This scenario can lead to a problem due to s.54 of the Income Tax Act (“ITA”). S.54 of the ITA states that there can only be one principal residence per family unit in a given tax year. This means that if the executor for the deceased spouse claims the PRE on their property, the other spouse will not be entitled to claim the PRE on their own property during that period. If the surviving spouse’s property appreciates in value, they would have to pay a capital gains tax to the CRA following the sale of their property or the tax would need to be paid by their estate upon their death. Thus, if the executor of the deceased spouse claims the PRE on their property, it could create a situation which unfairly precludes the surviving spouse from claiming the PRE on their own property. It should be noted that this section of the ITA also applies to common law partners. Under the ITA, common law partners are defined as people who cohabitate in a conjugal relationship for at least 12-months.

The Solution

There are steps which can be taken to prevent a person from being deprived the opportunity to claim the PRE on their property. People who are married or in a common law partnership and do not have common beneficiaries should consider entering into an agreement regarding the allocation of PRE years. An agreement would allow spouses to arrange for the PRE to be claimed between them in a manner which minimizes the aggregate amount taxed on the gain attributed to each of their properties and take into consideration other possible tax consequences. If an agreement of this nature exists, the executors and trustees of the deceased spouse’s estate should make decisions regarding the PRE in accordance with the agreement.

The post How Does The Principal Residence Exemption Affect Spouses appeared first on Nanaimo Law | Heath Law.

Understanding the Legal Presumption

When a parent transfers money to an adult child without receiving anything in return, the law generally presumes that the transfer is not a gift but is instead held on trust by the child for the parent.

This is because the law presumes bargains, not gifts to adult independent children. In other words, while the child may have legal ownership of the money, the parent is considered the beneficial owner.

This is called the presumption of resulting trust. It applies unless evidence shows that the transfer was intended as a gift.

The presumption can lead to complications if a dispute arises later, particularly when there is no clear record of what the transferring parent intended (gift versus loan) at the time of the transfer.

Making Your Intentions Clear

To avoid confusion and potential disputes, it is critical to establish, from the outset, whether the money is intended as a gift or a loan. If the parent intends the funds to be a loan, certain steps should be taken to document this clearly:

1. Create a Written Loan Agreement: Courts focus on the intention of the parent at the time of the transfer. A written document illustrating the parent’s intention, prepared contemporaneously with the transfer of funds, provides the strongest evidence of this intent.
2. Specify Repayment Terms: The loan agreement should outline the terms of repayment, including any interest, schedule of payments, and consequences of default. Even a simple repayment plan reduces ambiguity as it demonstrates the expectation of repayment.
3. Keep Documentation Accessible: Retain copies of the loan agreement, bank transfers, and any correspondence discussing the loan. This documentation can be invaluable if disagreements arise later.

If the funds are intended as a gift, it is equally important to document that intent. A simple Deed of Gift, gift letter or other written declaration can help to evidence the intention of the parent to give the money with no expectation of repayment. This protects both parties and can be used to rebut the legal presumption of resulting trust.

Common Pitfalls

Problems most often occur when nothing is documented at the time of transfer of funds. What begins as a clear oral agreement can become muddled over the years, especially as family dynamics shift – for example, if the child separates from a partner, if siblings become involved, if the parent’s financial situation changes or if someone dies.

Without clear evidence, one party may later claim that the funds were a gift, while the other insists they were a loan. This can lead to costly legal battles and lasting strain on family relationships.

Final Thoughts

Providing financial assistance to family members can be a generous and helpful gesture, but it comes with potential legal and relational complexities. By clearly documenting gifts or loans (specifying repayment terms), and keeping thorough records, parents can protect their interests and maintain harmony within the family. Clear communication and proper documentation ensure that everyone understands the nature of the transaction, preventing misunderstandings down the road.

If you are considering providing financial help to a child or another family member, it’s important to make sure your intentions are clearly documented. The lawyers at Heath Law LLP in Nanaimo can guide you through preparing a loan agreement or gift documentation to protect both your interests and your family relationships. Contact us today to schedule a consultation.

The post Why Should a Parent Document a Loan to a Family Member? appeared first on Nanaimo Law | Heath Law.

Grey divorce has seen a significant rise over the past few decades. Statistics Canada reports that while the overall divorce rate has stabilized or even declined in some age groups, it has increased by 26% for those 50 years of age and older. Several factors contribute to this trend, which include increased life expectancy, changing social norms, increased financial independence, and the increase in average age at marriage.

Grey divorce presents unique challenges that can be more complex compared to divorces at younger ages. Here are some key issues:

Financial Considerations

1. Division of Assets: Couples who have been married for decades often have significant shared assets, including property, investments, and retirement savings. Dividing these can be contentious and complicated.

2. Retirement Planning: Divorce can disrupt retirement plans, leading to concerns about maintaining financial stability in later years. It’s crucial to reassess financial goals and create a new retirement plan post-divorce.

3. Spousal Support: Given the long duration of many grey marriages, spousal support may be a significant issue, especially if one partner was the primary breadwinner.

Emotional and Social Impact

1. Loneliness and Isolation: After a long marriage, the prospect of living alone can be daunting. Rebuilding a social life and finding new support networks is essential.

2. Impact on Adult Children: Even though the children of grey divorcees are usually adults, they can still experience emotional turmoil. They may also face practical concerns, such as how holidays will be spent or how to support aging parents.

Health Concerns

1. Physical and Mental Health: The stress of divorce can exacerbate health problems, both physical and mental. Older adults need to prioritize their health and seek support when needed.

2. Healthcare Decisions: Couples often share healthcare plans and decision-making responsibilities. Divorce necessitates new arrangements, which can be complex and require careful planning.

Navigating Grey Divorce: Tips and Advice

Navigating a grey divorce requires careful planning and support. First, consult a family lawyer and financial advisor to address legal and financial complexities. Prioritize self-care by engaging in activities that bring joy and relaxation, and consider therapy or support groups for emotional well-being. Rebuild your social life by reaching out to friends, family, and new communities. Finally, set new goals for your future, embracing the opportunity for personal growth and fulfillment.

Conclusion

Grey divorce, while challenging, also offers an opportunity for personal growth and a fresh start. By understanding the unique issues involved and seeking appropriate support, individuals can navigate this transition and find fulfillment in their later years.

If you’re considering or going through a grey divorce in British Columbia, remember that you are not alone, and resources are available to help you through this journey.

The post Grey Divorce appeared first on Nanaimo Law | Heath Law.

False accusations by one parent against another, or against professionals employed in the process of the proceedings, may reflect poorly on the accusing parent’s ability to parent their child. Making false accusations has been a factor demonstrating the accusing parent’s inability to act in the child’s best interests, which is the only relevant factor when the Court is considering how to allocate parenting responsibilities and parenting time (previously known as custody). Making untrue and harmful accusations against the other parent has been found by the Court as evidence that the accusing parent is attempting to alienate the child from the other parent, an act that cannot be considered to be in the child’s best interest. Parental alienation may occur when one parent tries to get a child to hate or be fearful of the other parent. In trying to make the other parent look bad through untrue statements or accusations, the accusing parent is more likely to be hurting their own case and showing to the court that they are unable to behave in their child’s best interests. In the vast majority of cases, the child’s best interest includes fostering a positive relationship with both parents. When a parent shows they will go to extreme lengths to hurt the other parent, it demonstrates to the Court that the accusing parent is unable to put their child’s needs before their own.

When a parent makes false accusations or allegations against the other parent, the Ministry of Child and Family Development may have to become involved with the family. Depending on the nature of the false accusations/allegations, there may be serious disruptions to the child’s life. The Ministry may stay involved if they determine that the accusing parent is attempting to alienate the child from the other parent, and it may be found that the accusing parent is partaking in family violence by trying to weaponize the court process or Ministry against the other parent or the child. This kind of behaviour is not in the best interests of the child, and the accusing parent may have their parenting time supervised, restricted, or removed until they can show they can genuinely act in the best interests of the child.

The accusing parent may also have special costs awarded against them based on their conduct during the family law proceedings, which includes whether they have made false accusations against the other parent, and the nature and severity of those accusations. Generally, when a matter is brought to court, the successful party is entitled to costs. Costs awarded at Court are not intended to completely cover the legal costs of the successful party but to provide a set-off. Costs are generally set in accordance with the Tariff scale and may be increased or decreased slightly based on the complexity of the matter. In certain extreme circumstances, an unsuccessful party may be forced to pay what was previously known as solicitor-client costs, now known as special costs.

Special costs are awarded when the conduct of a party was so egregious that the courts finds that the successful party should be indemnified for all or most of their legal fees in lieu of using the Tariff scale. False accusations and allegations in many cases are likely to fall into this category, especially when there is a pattern of behaviour by the accusing parent. In other words, if a party to lawsuit conducts themselves in a way that earns the rebuke of the Court, they may be paying for both their own and the other party’s legal fees. False accusations by parents in family law proceedings have been found to be a factor the court may take into account when awarding special costs. Considering the steep costs of taking a matter to trial, this can cost the accusing parent tens of thousands of dollars just in paying for the other parent’s costs, in addition to their own costs.

To summarize, false accusations and allegations may hurt the accused parent, will almost certainly hurt the child in question, and will likely to have a profound negative effect on the parent making the false accusations/allegations. The falsely accusing parent may have special costs awarded against them, and they may lose parenting time and responsibilities with their child. They may have to be supervised when spending time with their child, or not be able to see their child at all. Parents must be able to show that they can and will act in the child’s best interest, and false accusations and allegations against the other parent (or against professionals employed during the family law proceedings such as counsellors, doctors, and ministry employees) demonstrates a parent’s inability to put the needs of their child before their own.

The post An Eye for an Eye: False Accusations by one Parent Against the Other in Family Law Proceedings appeared first on Nanaimo Law | Heath Law.

If two parents were the joint guardians of the child, and one passes, the surviving guardian will assume sole guardianship and all parental responsibilities, unless a Court Order or agreement states otherwise. If only one parent was the child’s guardian, and they pass, the other parent does not automatically become the sole guardian. That said, the surviving parent of a child who is not a guardian may be appointed as guardian through an application to Court under the Family Law Act. This may be the case if one parent solely raised the child, while the non-guardian parent did not spend any regular time with the child. If a child does not have a guardian for a duration of time, the Public Guardian and Trustee (the PGT) will step in. The PGT is a BC corporation with the goal of protecting individuals who do not have legal capacity, such as children.

A parent who is a guardian of a child may choose to appoint a successor guardian. The guardian can do this through their Will or specified form under the Family Law Act. It is important to remember that the successor guardian cannot be granted more rights than the recently deceased guardian. Further, appointments of successor guardians can only be made in accordance with the “best interests of the child” principles. These principles are involved in nearly all aspects of family law and require that the best interests of the child be considered, such as the child’s mental and physical well-being.

The law surrounding guardianship can be complex. The experienced lawyers at Heath Law LLP are happy to assist you with family law and other types of legal matters.

The post The Death of a Child’s Guardian appeared first on Nanaimo Law | Heath Law.

The minimum gross annual income at which the Child Support Table applies was increased from $10,820.00 under the 2011 Table to $12,000.00 under the 2017 Table. As a result, the Table no longer specifies a child support amount for payors living in British Columbia with an annual income of $11,999.00 or less.
For child support payors living in British Columbia with an annual income of between $12,100.00 and approximately $27,000.00 (depending on the number of children for which support is being paid), specified child support decreased under the 2017 Table.

For child support payors living in British Columbia with an annual income exceeding approximately $27,000.00, specified child support increased under the 2017 Table.
The maximum annual income for which child support is specified remains unchanged at $150,000.00. Beyond that income, there is a formula upon which child support is based.

For example, a payor living in British Columbia with an annual income of $17,000.00 paying child support for one child will now pay $111.00 per month under the 2017 Table as opposed to $133.00 per month under the 2011 Table. A payor living in British Columbia with an annual income of $75,000.00 paying child support for 3 children will now pay $1,522.00 per month under the 2017 Table as opposed to $1,483.00 per month under the 2011 Table.

While the changes to the Table were relatively minor, over time the difference in the amounts being paid and amounts otherwise payable may add up. If you are required to pay child support or receive child support as a result of an order made prior to November 22, 2017, we would encourage you to consult with a lawyer to ensure that a child support underpayment or overpayment does not accumulate.

Note that the Family Law Act will only allow a court to change, suspend or terminate an order respecting child support if certain conditions are met (see section 152). A court will require the parent seeking to vary the order to show that there has been a change in circumstances, evidence of a substantial nature that was unavailable when the order was made has become available, or that there was evidence of a lack of financial disclosure by a party that was discovered after the order was made. If one of the following applies to your situation, we recommend speaking to a lawyer about your options and your chances of success should you seek to change the child support amount payable or receivable.

The post The Federal Child Support Guidelines Child Support Table appeared first on Nanaimo Law | Heath Law.

Assisted human reproduction in Canada is considered altruistic and cannot be done for profit. Because surrogacy is an altruistic endeavour, surrogates also must not suffer any loss; thus the ways they may be reimbursed for specific expenses are set out in the AHRA and in the applicable Regulations. This includes documented travel expenses, medical expenses, groceries, any loss suffered to income as a result of the pregnancy so long as a medical practitioner has signed off on the loss, and other related expenses (with receipts). Additional compensation by the intended parents to any party involved with the surrogacy (the surrogate, any agency assisting with finding a surrogate, other donors etc.) can result in penalties under the AHRA. Speaking to a lawyer who specializes in fertility law to understand how intended parents can thank their surrogates is highly recommended.

While surrogacy is regulated at the federal level, especially in regards to compensating surrogates, it is also governed by the BC Family Law Act (“FLA”). The FLA defines “assisted human reproduction” as a means a method of conceiving a child other than by sexual intercourse. Reproduction through sexual intercourse would not qualify to be a surrogacy in BC, but would rather require that the intended parents enter into an adoption agreement with the birth mother.

BC has a fairly comprehensive statutory approach to surrogacy and covers that a donor (surrogate, egg, sperm, or the like) is not automatically considered a “parent” based solely on the donation (s. 24 FLA). BC law requires that intended parents and surrogates go through a two-step process: a surrogacy agreement prior to conception, and written consent of the surrogate after the birth (s. 29 FLA). Note that if a surrogacy agreement/ arrangement is not entered into prior to the conception, then the birth mother will be considered the child’s parent under s. 27 of the FLA.

The requirements for a surrogacy agreement are set out in s. 29 of the FLA which must include that

• it must be in writing,
• be made before the child is conceived through assisted reproduction, and
• confirm that the birth mother will not be a parent of the child (FLA s. 29(2)).
• Upon the birth of a child born as a result of assisted reproduction, it must be confirmed that no party to the agreement withdrew prior to the conception, and
• the surrogate must give written consent to surrender the child to the intended parents (FLA s. 29(3)).
• To be a surrogate, a woman must be at least 21 years of age (AHRA s. 6(4)).

Additionally, though not required, it is recommended for the safety of the surrogate that only women who have previously given birth become a surrogate. When considering surrogacy, either as a surrogate or intended parents, it is important to have a comprehensive agreement to set out the expectations of all parties. Because it is not required in BC to get a court order declaring parentage, and intended parents can be parents to the child born through surrogacy so long as there is a valid agreement, ensuring their is a written agreement between the intended parents and the surrogate is crucial. Consulting a lawyer prior to the conception of a child and prior to entering into such an agreement is strongly advised. Failure to do so could result in confusion and eventually having to attend Court to get a declaration of parentage, among other possible issues. Having a child should be a joyous time for intended parents and surrogates alike, and ensuring to have all parties’ rights and obligations clearly set out in the beginning will make for the best experience as parents embark on their parenting journey.

The post Surrogacy and the Law in British Columbia appeared first on Nanaimo Law | Heath Law.

A recent case in Ontario, Van Ruyven v Van Ruyven, 2021 ONSC 5963, dealt with two parties who put into evidence secret recordings they had taken of the other. The judge decided that the recordings could not be considered as evidence, and that such conduct was to be discouraged by the courts. This case has been cited by courts in BC, Alberta, and Saskatchewan, as well as Ontario, as judges caution family law litigants from engaging in the questionable activity of secretly recording one’s ex; or worse, one’s child.

Family proceedings can be extremely acrimonious. As such, some parents record the other parent or their child, in an often misguided attempt to collect evidence that the recording party thinks will amount to a “smoking gun”. However, this can often backfire and the recordings may cast doubt on the ability of the recording parent to put the needs of their child in front of their own desire to “win”. This was particularly so in K.M. v J.R., 2022 ONSC 111, where both parents secretly recorded each other, and the judge stated that parents need to be strongly discouraged from engaging in such behaviour.

The judge in that case, who had reviewed the recordings, stated in regards to the content of those recordings that

“[t]he adults were so busy arguing and screaming at each other that they didn’t seem to hear the boy say something that should have been obvious. “I’m scared.” (para 203(f)). The judge went on to say “the manner in which the recording was created raises serious questions about parental insight and sensitivity” (para 208 (e)).

In a similar situation, suspiciously obtained evidence was considered in a recent BC case: Steiner v Mazzotta, 2022 BCSC 827, where, in the context of the ongoing COVID-19 pandemic, a parent snuck onto the other parent’s property and took pictures of the parent who was with the child not wearing a mask in contravention of a previous order. The judge in Steiner admitted the picture as evidence, but stated: “Although the respondent’s poor conduct yielded evidentiary material that I could not properly exclude or ignore, such behaviour is not to be encouraged” (para 11(c)).

Note that whether or not secret recordings will be accepted by the court is up to the discretion of the judge, and that the creation and the attempted use of such recordings may backfire.

The post Secret Recordings by Parents in Family Law Cases appeared first on Nanaimo Law | Heath Law.

Costs awards in family law proceedings are categorized the same as the subject matter that the trial or application addressed, and each are treated differently in bankruptcy. A costs award following a trial dealing with support claims will be treated as a non-dischargeable debt, for instance, while a costs award following a parenting trial would be considered an unsecured claim in bankruptcy. Many trials do not deal with a single discrete issue, which risks making the categorization of a costs award on bankruptcy unclear. For this reason, it is important to consider whether the parties are at risk of insolvency at the time a cost order is made, so that costs can be apportioned per issue addressed at trial.

The post The Effects of Bankruptcy on Family Law Orders appeared first on Nanaimo Law | Heath Law.