Important decisions need to be made regarding how your children will be cared for upon separation and divorce including:

• Who will they live with and, if both, how is that time set out (“parenting time”)?
• Who will make decisions regarding their day-to-day lives (“parenting responsibilities”) as well as their property (“guardianship”)?

Sometimes, parents cannot agree and turn to the courts.  The typical starting point for the court is shared parenting (equal parenting time) noting that one does not need to be a ‘perfect parent’ to obtain a shared parenting order.  Generally speaking, it is also typically presumed that parenting responsibilities and guardianship matters will also be shared or joint.  However, there are circumstances that may give rise to a court making an order that moves away from a shared model in favour of one parent over another.  In making any order regarding parenting time, responsibilities and guardianship, section 37 of the British Columbia Family Law Act governs such decisions and considers only the best interest of the children which contemplates:

• the child’s health and emotional well-being;
• the child’s views, unless it would be inappropriate to consider them;
• the nature and strength of the relationships between the child and significant persons in the child’s life;
• the history of the child’s care;
• the child’s need for stability, given the child’s age and stage of development;
• the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
• the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
• whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
• the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
• any civil or criminal proceeding relevant to the child’s safety, security or well-being.

Over time, the needs and circumstances of a child will change and parenting arrangements, responsibilities and guardianship, whether set out in an agreement or in a court order, may need to change with them.  What worked for the children when they were three and five may be very different from what they need at ten and twelve.

Pettit and Company can help you negotiate a parenting agreement or changes to an existing agreement.  If necessary, Pettit and Company can leverage its wealth of experience to advocate for you through the courts in seeking an order that will best protect your children’s physical, psychological and emotional well-being. 

Child support is the right of the child.  Both parents have a legal responsibility to support their children both during marriage and after a separation or divorce.  Although there is some flexibility in setting an amount for child support, reasonable arrangements must be made either by agreement or by the court.  In fact, a judge can refuse to grant a divorce if s/he is not satisfied that appropriate child support arrangements have been made.

Generally, if the parents each make the same amount of money, it may be that no support will be payable by the other.  However, as incomes diverge or individual circumstances pose unique needs, support payable may increase by one parent to the other.  Other circumstances as well can alter the way child support is approached, for example, if one parent gives up the right to the family home such that the other parent and the children can reside there, this may give rise to a lower monthly child support amount.

The amount of child support payable by one parent to another is determined by using a set of rules and tales called the Federal Child Support Guidelines using the income of the parents as the values by which to calculate the amount.  What a person’s true income is, however, can be a source of disagreement, particularly in circumstances when one parent is self-employed.  It is not unusual for one party to attempt to artificially deflate their income through the vehicle of their own company.  In such cases, a deeper analysis of that party’s income is required.

Pettit and Company can assist to ensure you and your children are receiving the correct amount of support or are paying the appropriate level of support based on your circumstances.  If necessary, we can leverage our wealth of experience to advocate for you through the courts in seeking an order that will best protect your children’s financial well-being. 

Spousal support is arrived by first examining one’s entitlement to it and then assessing the amount and duration

Entitlement is determined by considering the objectives of spousal support which are to:

• address the economic advantages or disadvantages of one party as a result of the relationship and subsequent separation or divorce;
• share any economic consequences of raising children;
• minimize economic hardship a party may suffer post separation or divorce; and,
• promote economic self-sufficiency within a reasonable time frame.

Once entitlement is determined, the next question is: how much and how long?  The courts depend on the Spousal Support Advisory Guidelines as a means to determine amount and duration, and will take several factors into consideration including:

• The financial situation of both parties;
• The length of the relationships or marriage;
• The roles the parties took during the relationship or marriage;
• The needs of the recipient to become self-sufficient, such as retraining or further education.

For example, if one parent stayed at home to raise the parties’ children, that parent may have consequently stunted his or her career development and growth.  Upon separation and divorce, it could take the stay-at-home parent some time, if not several years, to regain a foothold in the working world to rebuild his or her resume, network and experience to a such a level that would allow economic self-sufficiency. The stay-at-home parent may require upgrading of skills via further education and the amount of spousal support may take this education expense into account.  In some cases, depending on the ages of the parties and the length of the marriage, it may not be possible at all to return to the workforce.

The circumstances of the way in which your relationship ended are completely irrelevant, for example, if one party had an affair.  A judge will only consider the factors as set out above.

Pettit and Company can assist to ensure you are receiving the correct amount of support or are paying the appropriate level of support based on your circumstances.  If necessary, we can leverage our wealth of experience to advocate for you through the courts in seeking an order that will best protect your financial well-being. 

Before dividing any assets we need to determine what family assets you both have.  A family asset is an asset that is owned by either party at the date of separation.  The Family Law Act defines family assets as well as family debts.  It also defines excluded property – property that is not subject to division, such inheritances, property owned by one party prior to the relationship or property held in a trust.

The starting point for dividing family assets is that each party is entitled to an equal share unless it is significantly unfair to do so.  Some considerations of significantly unfairness include the duration of the relationship, any agreements between the spouses, the amount of family debt, tax liabilities as a result of a transfer of sale of a property. 

The pension accumulated during the relationship from the commencement of cohabitation to the date of separation, is subject to equal division. Parties can agree that the party who has contributed to the pension, can buy the other party out in lieu of dividing the pension. In such a case, the pension will be valued by an actuary.

Any RRSP’s either party accumulated from the date of cohabitation to the date of separation are subject to equalization regardless in whose name they are registered.  This is done by way of a spousal rollover into another RRSP account in the spouse’s name.  This means that the parties do not need to withdraw the RRSPs to transfer them and do not incur the tax that would follow by withdrawing the money.

The lawyers at Pettit and Company can advise you of your rights with respect to preserving your assets and ensuring that you receive your fair share of the joint assets.

A business owned by either spouse is a family asset and is subject to division after separation.  If one party has a share or interest in a corporation, those shares or interests are family assets and subject to division.    Some businesses are valued by determining the retained earnings but others require expert evidence from a business valuator.   

The business will be valued as of the date of the division, not the date of separation, unless otherwise agreed. 

The lawyers at Pettit and Company can advise you how to determine the valuation of a company and how to fairly divide the assets.

The British Columbia Family Law Act sets out that common law spouses, referred to as those who are in a ‘marriage-like-relationship’, share the same rights and obligations of legally married spouses.

The definition of a spouse under the Act is as follows:

Spouses and relationships between spouses

3   (1)A person is a spouse for the purposes of this Act if the person

(a)is married to another person, or

(b)has lived with another person in a marriage-like relationship, and

(i)has done so for a continuous period of at least 2 years, or

(ii)except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person. 

A cohabitation agreement sets out what will happen if you and partner end your marriage-like-relationship and allows you to operate outside of the Family Law Act.  For example, you and your partner may agree that certain assets acquired during your relationship belong to one party or the other, which under the Act, would be considered family property and subject to division.

Cohabitation agreements can contemplate all such things as:

• Property division upon separation;
• Spousal support including entitlement, amount and duration;
• Debt responsibilities;
• Conduct guidelines including how money is spent or saved;
• Child support and parenting arrangements (noting that such terms may not be enforceable as these are the rights of the children);

It is crucial to note that each party to a marriage agreement needs to obtain their own independent counsel.  Failing to do so could easily give rise to having all or parts of the cohabitation agreement being set aside.

Pettit and Company can advise you as to the fairness of the agreement and further assist with all or some of the negotiations, drafting and/or execution of a cohabitation agreement as you require. 

A marriage agreement sets out what will happen if you and to-be-spouse separate or divorce and allows you to operate outside of the Family Law Act.  For example, you and your partner may agree that certain assets acquired during your relationship belong to one party or the other, which under the Act, would be considered family property and subject to division.

It is crucial to note that each party to a marriage agreement needs to obtain their own independent counsel.  Failing to do so could easily give rise to having all or parts of the marriage agreement being set aside.

Pettit and Company can advise you as to the fairness of the agreement and further assist with all or some of the negotiations, drafting and/or execution of a marriage agreement as you require. 

Sometimes things are just a matter of paperwork and but you still need to ‘paper’ it as well as obtain legal advice.  You want to be sure that you have been a party to a fair agreement as entering into a separation agreement most certainly ensures that neither party can come back to challenge it.  A separation agreement can include:

• Property & debt division;
• Child support and parenting arrangements noting that such terms may not be enforceable as these are the rights of the children. Further, if the ultimate goal is to be divorced, it is important that matters relating to the children are reasonable or a divorce may be denied;
• Spousal support if any and is so, amount and duration

There is a one-year waiting period from date of separation in order to finalize a divorce; however, entering into a separation agreement will assist in the smooth processing of the ultimate divorce.

It is crucial to note that each party to a separation agreement needs to obtain their own independent counsel.  Failing to do so could easily give rise to having all or parts of the separation agreement being set aside.

Pettit and Company can advise you as to the fairness of the agreement and further assist with all or some of the negotiations if necessary as well as the drafting and/or execution of a separation agreement. 

The period immediately after separation is the riskiest period for family violence, especially in a family already experiencing violence. The Family Law Act defines recognizes that family violence can come in many forms including:

(a)physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b)sexual abuse of a family member,

(c)attempts to physically or sexually abuse a family member,

(d)psychological or emotional abuse of a family member, including

(i)intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii)unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

(iii)stalking or following of the family member, and

(iv)intentional damage to property, and

(e)in the case of a child, direct or indirect exposure to family violence;

Anticipating a reaction can adds to the stress of a family breakdown – will the children and I be safe?  How will I have access to money?  I’m worried our property will be damaged or destroyed.

Protections can be provided through Protections Orders or Conduct Orders. A Protection Order can, among other things, restrict a person from attending a residence, limit or restrict proximity or contact with certain people both directly and indirectly and can restrict the use or possession of a fire arm.  A Protection Order can be obtained without any notice to the other person is valid for up to a year but can be renewed upon application.  A copy of the Protection Order must be carried with the person for whom it is made against at all times until it expires and a breach of a Protection Order can result in a criminal sanction.

Conduct orders steer away from family violence and focus more on controlling a person’s behaviour that might otherwise prevent the resolution of the family matter at hand.  A conduct order could include:

• prohibiting a person from cutting off utilities to a family home;
• ordering a person to maintain payments on costs pertaining to the family home (mortgage/rent, utilities, taxes, etc.);
• govern the way in which or how often the parties communicate (via email only, only once a week or in the event of an emergency, etc.);
• requiring a person to attend counselling or programs like a parenting courses, anti-violence or anger management classes and could include an order to report to the court or counsellor; or,
• an order for the supervision of the removal of personal belonging from the family home.

A breach of a conduct order is a civil breach and can be subject to a fine.

Pettit and Company can assist you in addressing family violence issues either in anticipation of separation or after.