Is the Agreement Procedurally Unfair?

Before a Court will set aside an agreement, it will first consider the circumstances surrounding the agreement and whether the parties entered into the agreement in a fair manner.

The Court will consider several factors, such as whether:

  1. one party unfairly pressured the other into signing the agreement;
  2. one party had substantial power over a more vulnerable party;
  3. one party failed to disclose important information to the other party that would have affected the distribution under the agreement;
  4. there was an error in calculation or other mistake;
  5. one party lied to the other party about something that would have affected the agreement; and
  6. each party obtained legal advice about the agreement from his or her own lawyer.

After considering the above, the Court may stilldecide to not set aside all or part of the agreement if it finds that it would not have made a substantially different order for property division.

Is the Agreement, in Substance, Significantly Unfair?

Under a second step, even if the Court finds that the agreement was obtained in a fair manner, the Court may still set aside the agreement if the Court determines that the agreement is significantly unfair.

In determining whether the agreement was significantly unfair, the Court will consider:

  1. the length of time that has passed since the parties made the agreement;
  2. the parties’ intention in achieving certainty in making the agreement; and
  3. the degree to which the parties relied on the terms of the agreement.

If you need legal advice regarding a property agreement, please contact Heath Law LLP.

Upon the separation of two spouses, whether married or common law, spousal support is a critical issue that needs to be discussed. This is especially important for those who are leaving long-term relationships because the effects of separation can be particularly severe for them. Spouses should be aware of a couple of rules that may determine how long spousal support will paid.

The Spousal Support Advisory Guidelines must be considered by the courts when considering the amount and duration of spousal support. Generally, support will be payable for 0.5 to 1 year for each year of cohabitation or marriage. So if two people were in a 14 year relationship, spousal support would be payable for 7 to 14 years. However, if the relationship lasted for 20 years or longer, the duration of support will be indefinite. Spousal support can also be indefinite under the Rule of 65. This rule calls for indefinite support when the age of the recipient spouse plus the length of the relationship equals or exceeds 65. The Rule of 65 does not apply to relationships that last for less than 5 years. For example, if two people ended a 10 year relationship when they were both 60 years old, support would be indefinite.

Indefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order or agreement. Indefinite support orders are open to variation or review as circumstances change over time. Changes in circumstances may include a change of income, retirement, re-partnering, or if the recipient spouse has become self-sufficient.

Recipients of indefinite spousal support are under an obligation to make reasonable efforts toward their own self-sufficiency. There is no duty to achieve self-sufficiency, but efforts must be made. If a recipient fails to make reasonable efforts, the courts may impute income and reduce spousal support on a later review or variation.

If you would like to book an appointment with any of our family law lawyers, please contact Heath Law LLP at 250-753-2202.

In BC, a Court can award spousal support to provide redress to a recipient spouse for an economic disadvantage arising from the marriage or for conferring an economic advantage on a payor spouse.  This is known as “compensatory support.”

In the recent case of Wilson v. Garbella, 2018 BCSC 864 [“Wilson”], the Court adopted the BC Court of Appeal case Chutter v. Chutter and summarized the principles which inform compensatory support, writing:

[50]      The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success…

[51]      In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts…the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse.”

In Wilson, the Court found that the Claimant experienced disruption of her employment by moving to Halifax while the Respondent trained for submarine service and acted as primary caregiver for the parties’ child for the last five years of the relationship.  In the circumstances, the court found that the claimant suffered a loss of income earning potential by subordinating her needs to those of her family, and, by assuming primary responsibility for the parties’ child, assisted the Respondent in furthering his career.

The Court therefore found the Claimant was entitled to compensatory support of $450.00 a month for four years.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

When a couple is separating, one issue that may need to be addressed is whether one of the people should receive spousal support. Spousal support attempts to meet the needs of a spouse who is financially dependent on the other spouse. A person may apply for spousal support if he or she was married, living together in a marriage-like relationship for at least two years or for less than two years but the couple had a child together. The separating couple may resolve the issue of spousal support by agreement or in Court. The agreement or Court Order may require that one spouse pay support in the form of a regular payment or a lump sum amount.

Are You or Your Spouse Entitled to Spousal Support?

Unlike child support when children are involved, spousal support is not something that always results from a relationship breakdown. The person who is seeking spousal support must first be entitled to receive it. Entitlement is based on the objectives of spousal support, which are to:

  • encourage self-sufficiency;
  • address economic advantages or disadvantages arising from the relationship or the separation;
  • reduce any financial hardship arising from the separation; and
  • address any financial inequality resulting from caring for the children of the relationship.

In considering these objectives and whether a person is entitled to spousal support, the Court will look at:

  • who is responsible for child care and whether this impacts that person’s ability to earn income;
  • decisions that the couple made during the relationship that may have limited career opportunities for one of the spouses; and
  • any economic hardship that resulted from the separation.

Amount and Duration

Once the Court determines that the person seeking spousal support is entitled to receive support, it must determine how much spousal support the person will receive and for how long he or she will receive it. The Spousal Support Advisory Guidelines can help determine the appropriate amount of spousal support. However, the Guidelines are only guidelines and a Court does not have to follow them. The amount and duration of the spousal support will depend on:

  • each spouse’s financial situation;
  • the length of the relationship;
  • the roles that each spouse occupied during the relationship; and
  • whether the spouse seeking spousal support needs any training to become self-sufficient.

Time Limits

A person applying for spousal support under the Family Law Act must do so before two years has passed since either receiving a divorce or, if you were unmarried, since the date of separation.

A person may only apply for spousal support under the Divorce Act if he or she was married. Under the Divorce act, there is no time limit to apply for spousal support.

 

For any further questions regarding a separation or to schedule an appointment with a litigation lawyer, click here.

When Can I Apply for a Divorce?

Many people believe that a divorce can happen overnight. However, getting a divorce can be complicated and does take some time. In Canada, a couple can only get a divorce if there has been a breakdown of the marriage. There are three ways to show that a marriage has broken down: you and your spouse have lived separate and apart for at least one year before you apply for a divorce; adultery; or physical or mental cruelty.

The most common type of divorce is one that results from living separate and apart for one year. It can sometimes be difficult, more time consuming and expensive to prove that your spouse committed adultery or was physically or mentally cruel. If the court finds that you forgave your spouse’s behaviour, you will also be unable to receive a divorce based on adultery or cruelty.

Separation

Sometimes when a couple decides to separate, they may not be able to move into separate houses right away. In some cases, separation can occur while you are still living with your spouse. However, you must not be living as a married couple and you must have the intention to separate. There are a number of factors that may determine whether you are living as a married couple including whether you are sleeping in the same bed, eating meals together, sharing finances, or engaging in activities as a family.

What Else Do I Need to Do to Get a Divorce?

Before you can get a divorce, you must show that you have made reasonable arrangements for the support of your children. “Reasonable arrangements” includes reaching an arrangement for the payment of child support. At the time you apply for a divorce, you may also wish to address how you and your spouse will divide parenting responsibilities, whether spousal support is claimed, and how you and your spouse will divide your property.

 

If you need legal advice on this subject or any other law related inquiry please contact us.

My Partner and I are Separating, Do I Need to Pay Child Support?

Introduction

A parent has an obligation to help financially support his or her children. When two people who have had a child together separate, there is a responsibility to pay child support regardless of whether the parents were married. A step-parent may also be responsible for paying child support. Although a parent will generally be responsible for paying child support, there are a number of factors that may affect how much you have to pay and for how long you have to pay.

How Much Child Support will I have to Pay?

There are guidelines that generally determine how much child support you will have to pay. These guidelines are called the Federal Child Support Guidelines. The amount you will have to pay depends on how much money you make and how many children you have. In addition to the basic amount that the Guidelines set out, you may also be responsible for a portion of other special expenses, such as daycare or the cost of braces.

It is possible that you will have to pay an amount that is different than the amount set out in the Guidelines. For example, a court may order you to pay an amount that it decides is fair in the circumstances. It is also possible to agree with the other parent to pay a certain amount of child support. This amount must be reasonable as a court will change the amount if it determines that reasonable arrangements have not been made for the support of the child.

Step-parents

Although your financial obligation may be different than the amount set out in the Guidelines, if you are a step-parent, you may also have a responsibility to pay child support. If you are a step parent, whether you have to pay child support may depend on the legislation. If you were married, you may proceed under the Divorce Act. Under the Divorce Act, you will likely be responsible to pay child support if you lived with the child and behaved like a parent towards the child.

Under the Family Law Act, you will be responsible for paying child support if you are a legal spouse of the child’s parent and you helped support the child for at least one year. You will be a spouse of the child’s parent if you were married or if you lived in a marriage-like relationship with the child’s parent for a continuous period of two years or if you had a child together. Under the Family Law Act, you will also only be responsible for child support if a court proceeding is started within one year of the last time you providing support for the child. Under the Family Law Act, a step-parent’s responsibility to pay child support is secondary to other parents or guardians and may depend on several factors, including how long the step-parent lived with the child.

How Long Do I have to Pay Child Support?

In most cases, a parent will be responsible to pay child support at least until the child reaches the age of 19. A parent’s obligation to pay child support may continue after the child reaches 19 if that child still relies on his or her parents due to illness or disability, or because he or she is going to school full-time.

If you need legal advice on this subject or any other law related inquiry please contact us.