Legal Separation: What is it and how do you get one?

Some of the more common questions I receive in my family practice revolve around the issue of obtaining a “legal separation”.

The issues related to marriage, separation and divorce in the Province of British Columbia are governed by the federal Divorce Act the provincial Family Law Act.  Under these laws, there are no forms to fill out, nor is there any necessity to get lawyers or the courts involved, in order for a married or common-law couple to become separated.  In short, there’s no “legal separation” to “get”.

In BC, a couple is considered to be separated as soon as the two start living separate and apart with the intention to separate permanently.

As referenced above, separation in BC involves two components: a physical separation and the recognition by one of the parties that the relationship is at an end.  A joint intention to separate is not required.

Physical Separation

Physical separation is often easiest to pin down to a specific date as it is often when one of the party’s vacates the shared residence at the time of separation.  However, for various reasons (most commonly economic necessity), one party immediately leaving the residence upon separation is not always an option.  Parties can live “separate and apart” under the same roof provided that one or both parties have shown their intent to end the relationship.

One of the most common factors considered in determining whether parties are separated under the same roof is whether the parties occupy separate bedrooms.  Other factors include absence of sexual relations, little, if any, communications between the parties, eating meals separately, no longer doing social activities together and how the parties portray themselves to others.

Intent to Separate Permanently

Pursuant to the BC provincial Family Law Act, the court may consider as evidence of separation communication by one party to the other of an intention to separate permanently, or an action taken by a party that demonstrates that party’s intention to separate permanently.  Unfortunately, the parties may not agree about when the “intention” was conveyed to the other and this can result in parties disagreeing about the date of separation.  Typically this “intention” is communicated verbally and as such, when the parties disagree on the date, there may be little to no evidence to support their position.

One way to help avoid any confusion about the date that intent was conveyed is to follow-up your verbal communication of your intention to separate with something in writing.  An email or text message saying something along the lines of “further to our conversations earlier today it is my intention to permanently separate from you” could prove helpful in pinpointing a specific date should the parties be unable to agree.

Pinning down a specific separation date is important as, under to the Divorce Act, the parties must have lived separate and apart for at least one year in order to get a divorce (there are exceptions to this in cases of adultery as well as physical or mental cruelty).  The separation date can also be an important factor with respect to the division of property and spousal support.

Separation is more than just starting to live separate and apart.  Assets and debts also need to be separated, and the issues of spousal support, parenting plans and child support need to be considered. If you are recently separated or considering separation, it is prudent to seek legal advice, and we can help.  Please contact us to arrange for a consultation with one of our family lawyers.


Passports for Children – Some Ins and Outs

One issue that I see regularly in my family practice is the difficulty in obtaining passports for children under the age of 16 years.

When parents are divorced or separated, the parent who has custody of the child is the one who is entitled to apply for a passport.Ready to Travel

You would think it would be that easy.

It’s not.

It is my experience that, unless a court order specifically says that one parent has sole custody, Passport Canada will not issue a passport unless BOTH parents sign the application. The reason, it seems, is that the rules used by Passport Canada specifically refer to the terms of “custody” and “access”.

In this day and age, there often is no designation in court orders or agreements as to custody but rather they state that the parents have joint custody and that the child’s primary residence is one parent or the other. Further, under the new Family Law Act, which came into force in British Columbia on 18 March 2013, there is no longer any reference to “custody” at all, but rather it speaks of “parenting responsibilities”.  The term “access” is also gone and has been replaced with “parenting time” or “contact”. Only in the Divorce Act are the terms custody and access still used.

When an agreement or order says that the parents have joint custody, or there is no reference to custody at all but only primary residence, or references only to parenting responsibilities and parenting time or contact, Passport Canada will not issue the passport without both parents’ signatures.

Most often parents remain in proximity to each other but there are times when one parent or the other moves away or in some cases even loses contact with the child and in those cases getting a passport for a child can be problematic.

So what is the solution?

It is always simplest to think ahead and make provisions in the court order or agreement for obtaining a passport.

One possible way to avoid future problems is to designate one parent as having sole custody for purposes only of obtaining or renewing a child’s passport.

Or, if you are concerned that the other parent will try to obtain a passport without your consent, a term could be added that for purposes of obtaining a passport the parties have joint custody, thereby ensuring a passport will not be issued without both parents’ signatures.

The agreement or court order should also set out who will hold the passport between travel times and when and on what conditions it will be provided to the traveling parent. Dealing with the issues in advance will make things much easier in the long run.

What if you are concerned a passport will be issued without your consent?

Passport Canada has a system called Passport System Lookout. You can apply to register your child by making a request in writing and faxing it to Passport Canada at 1-819-953-5856.   Registration does not prevent a passport being issued or being renewed nor does it prevent travel but it will be an alert to Passport Canada, and you may be contacted if someone tries to obtain a passport for your child.

Travel Consent Letter

Aside from a passport, it is important to have along a travel consent letter from the non-traveling parent  whenever traveling outside of the country with a child.  There is no guarantee of entry into another country even with a travel consent letter, but it will be requested in many circumstances. For example, most often, if you travel to the United States by car or air, you will be asked to produce a travel consent letter, especially if the last name of the child is different from yours.

There is a Travel Consent Letter Form for use on the Foreign Affairs and International Trade Canada website which you can fill out.  This form of travel consent letter is recognized by the government which is something to consider to avoid travel difficulties. The travel consent letter does need to be signed in the presence of a lawyer or notary but you can fill it out and take it to the notary or lawyer if you choose.

To avoid the necessity of getting a travel consent letter every time you travel, parents can give each other “blanket” travel consent letters. This is ideal if, as parents, you have trust and confidence in each other. Most often parents require travel letters to be provided each separate occasion.

As with the passport issue, any agreement or order should contain terms requiring parents to provide travel consent letters on a reasonable request.

Email at Your Peril

The breakdown of a marriage is a very stressful time. It is not unusual to be angry and it is not unusual to vent that anger.

Before this technological age, we had to actually face each other to vent anger but now with email, Facebook, Twitter, text messaging and all the other instant messaging available to us, we can vent to our hearts’ content and never actually see the impact of our communication.

As a family law lawyer, I have seen some very hurtful, mean and threatening instant communications as well as email harassment by a constant, endless barrage of instant communication.

As most people know by now, family law in British Columbia is going to change significantly in the middle of March 2013 when the existing Family Relations Act is replaced by the new Family Law Act.

The Family Law Act specifically addresses family violence. “Family violence” is broadly defined in s. 1 of the Family Law Act as including:

(1)          physical, sexual, psychological, and emotional abuse;

(2)          intimidation, harassment, threats, and stalking;

(3)          restricting a person’s autonomy and withholding the necessities of life;

(4)          damaging property; and

(5)          in the case of children, direct or or indirect exposure to family violence.

There are provisions for protection orders against family violence and those too, are broadly defined (see s. 183) and there are specific factors which the court must consider in assessing family violence.

Family violence impacts many areas of family law including custody and use and possession of the family home. S. 37  of the Family Law Act adopts the former standard of the best interests of the children as the underlying principle for all decision making relating to children. S. 37(2) sets out that in determining what is in a child’s best interests the court must consider a number of factors including:

(g)          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;

(h)          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…

With the change in the legislation, lawyers and judges are going to be looking to other jurisdictions for precedent to help interpret the new Family Law Act.  And no doubt, we will be looking to Ontario which has had a similar statute in place for many years.  Courts may well consider emails to fall within the definition of “family violence”.

I recently read this article in the Law Times which refers to cases in which Ontario courts have considered emails to fall within the definition of “family violence”. The article is worth reading before you decide to hit the “send” button.

So beware.  Watch what you say, what the language you use to say it, and watch your tone. To indiscriminately email, text, and/or Facebook means you risk losing occupation of your home, face protection orders or perhaps even the loss of your children.


Adopting a Family Member

According to the Adoption Act, R.S.B.C. 1996 c. 3, the act that governs adoptions in British Columbia, a birth parent or a guardian related to the child is permitted to place a child for adoption when the prospective adoptive parent(s) is a relative of the child.

In order to proceed with a relative adoption, the following written consents must be obtained:

  1. the birth mother,
  2. the father of the child,
  3. the child (if the child is over 12 years old), and
  4. any person who has been appointed as the child’s guardian.

The definition of “father” is set out in Section 13(2) of the Adoption Act. Generally speaking, if a male person has in some way acknowledged that he is the father of the child, if the court has recognized him as a parent or a guardian of the child, or if the birth mother has acknowledged him as the father and he is registered on the birth father’s registry, then that person’s consent is required.

The consent of the birth mother is not legally valid unless that consent is given at least 10 days after the birth of the child.

The consent of a child’s parents can be dispensed with (waived) in certain circumstances. In most relative adoptions, however, getting the consent forms signed is not an issue.

When the child to be adopted is between the ages of 7 – 12 years of age, the Act requires that the child be interviewed by someone specifically authorized under the Adoption Act Regulations, usually a social worker, to make sure the child understands what adoption means and to obtain the child’s views on the adoption.  Because the adoptive parents often want to change the child’s last name to their own, the child’s view on any proposed name change is also obtained. The person interviewing the child will make a written report, and that report is filed with the court as part of the application process.

Once the consents are signed and the report, if required, is received, court documents are prepared and are signed by the adoptive parents. Those documents are sent in to Supreme Court along with the proposed form of adoption order. Generally in adoptions by relatives, there is no need for anyone to actually appear in court. A judge of the Supreme Court will review the documents submitted and will sign the adoption order.

Once the adoption order is signed by a judge, the adoption is complete.  The child becomes the child of the adopting parents and the birth parents cease to have any parental rights or obligations in relation to the child.

The Adoption Act also provides for adoption by step-parents. The process is similar, but sometimes there is more difficulty obtaining consents and additional steps may have to be taken to dispense with a parent’s consent.

The Family Law Group at Waterstone Law Group LLP is familiar with family and step parent adoptions, and is able to guide you through the process step by step.

“Review” of Spousal Support

At the end of a common law relationship or marriage, one party, usually the wife, has been out of the work force for a period of time.  Often this is because a decision was made that she should stay home and tend to the needs of the children.  When the relationship breaks down spousal support is raised as an issue.

Sections 15.2(4) and (6) of the Divorce Act and section 93(4) of the Family Relations Act set out the objectives of a support order and the factors the court is to consider when deciding whether to order spousal support and for how long.

Often, though, the wife’s prospects of employment are not known at the time of the trial. Sometimes skills are rusty and retraining is required, sometimes there just needs to be a little time to build up seniority to move from part time to full time employment and sometimes the children are so young that it is reasonable for the wife to continue to remain at home for a period of time to continue tending to the children’s needs. It is in these sorts of circumstances that courts often order spousal support for a specific period of time with a “review” at a later date.

If the court orders that spousal support be paid at $800 per month until further order of the court, a spouse who wants to have the order changed must prove that there has been a significant change in either his or the other party’s circumstances since the last court order was made.  For example, the payor has lost employment, retired or become disabled or the recipient has found high paying employment. If the applicant is unable to prove a significant change in circumstances, the application is dismissed and the order for spousal support remains in place. It can be very difficult to establish a sufficient change.

If, however, the court orders that spousal support be paid at $800 with a review in three years from the date of the court order, the person who wishes to change the order does not have to prove a significant change in circumstances. On a review the court simply looks at the circumstances of the parties at the time of the review and decides whether or not the support should continue and whether the amount payable should be changed.

The Supreme Court of Canada, in the case Leskun v. Leskun, 2006 SCC 25, [2006] 1 SCR 920 directly addressed the issue of reviews in the context of spousal support. What is clear from that case is that the courts should, as far as possible, avoid the use of review orders.  If  a review order is made, it ought to be “tightly delimited” as failure to do so “will inevitably be seen by one or other of the parties as an invitation simply to reargue their case”. (see paragraph 39 of Leskun)

Most often court orders are broadly written so that the review covers both the amount to be paid (the “quantum”) and the length of time for which spousal support is to be paid (the “duration”). But in a few cases where the court orders have been more tightly drawn, the court has limited the review to either the quantum or the duration. A recent case from the British Columbia Court of Appeal, Westergard v. Buttress, 2012 BCCA 38, is a case in point.

In the Westergard case, the wife had been out of the work force and the trial judge decided that she was entitled to spousal support in order to become self-sufficient. Spousal support of $450 per month was ordered. With respect to the duration, the court’s Reasons for Judgment were that Ms. Westergard would “receive support payments for four years. On the fourth anniversary of this order the spousal support order shall be reviewed. Upon review, Ms. Westergard will bear the onus of showing that spousal support should continue. The parties may in the meantime make application to vary, suspend, or terminate this order due to a change of circumstance.” (see paragraph [4]).

When the lawyers prepared the court order, the language used was slightly different, effectively terminating the spousal support on the fourth anniversary of the order and changing the mandatory review to an optional one. The onus was still on Ms. Westergard to prove that spousal support should continue.

Ms. Westergard did apply to the court to extend the time for payment of spousal support. When her application was heard, the Supreme Court Chambers judge increased the support to $800 a month and did not stipulate an end date. Not surprisingly, Mr. Buttress appealed to the BC Court of Appeal.

The Appeal Court found nothing wrong with the Chambers judge’s order to continue to the spousal support but did not agree that the Chambers judge was entitled to increase the amount of the spousal support. The Appeal Court referred to the Leskun case and reiterated that review orders should be “tightly circumscribed, to indicate the precise issue that is being reviewed.” Reading the trial judge’s Reasons the Appeal Court said the trial judge’s:

 [21]        … purpose in providing for a review was to allow a determination to be made as to whether Ms. Westergard had realized her goal of achieving self-sufficiency and whether she continued to be entitled to support. To the extent that any review of quantum was contemplated, it could only be a consequence of Ms. Westergard’s partial achievement of self-sufficiency, or her failure to comply with the requirements of s. 96(4) of the Family Relations Act to make reasonable efforts to achieve self-sufficiency. Any change to quantum of support that was not related to efforts to achieve self-sufficiency could only be accomplished through a variation application…”

The Westergard case highlights the importance of the wording of court orders and how important it is to carefully set the parameters for any review of spousal support.

Shared Parenting and the Canadian Child Tax Benefit

Who gets the Child Tax Benefit when parents separate but equally share parenting?

It used to be the case that when parents separated the parent with whom the children lived most of the time received the Child Tax Benefit (often called the “baby bonus”) from the Government of Canada.

There has been a growing trend towards parents sharing parenting responsibility of children on the breakdown of a marriage or common law relationship and more and more frequently children spend half of their time in the care of each of their parents.

The Canadian Government has been adjusting its rules on who gets the Child Tax Benefit (the “CTB”) as parenting trends have been evolving. For quite some time, in shared parenting situations, the CTB would be paid to each parent for six months of the year. As of July 2011, the Income Tax Act, under which entitlement to the CTB is determined, was changed to recognize both shared custody parents as “eligible individuals”.

To be considered “eligible individuals” the parents must live in separate locations, live with the child on an equal or near equal basis and be primarily responsible for the child’s care and upbringing when living with the child.

What is considered equal or near equal is any arrangement that results in an almost equal sharing of the child’s time, for example, where a child is with each parent for alternating weeks or where the child is with a parent on an alternating four/three day sharing arrangement. In those situations each parent will receive monthly CTB payments equal to 50% of the amount the parent would have received if the child lived with that parent on a full time basis.

For more information visit the Canada Revenue Agency’s website where  you can find, among other things, an excellent Child and Family Benefits Online Calculator  that can be used to obtain an estimate of the CTB you would receive in your particular circumstances.

Deducting Legal Costs for Income Tax Purposes

It’s tax time again!  I often receive calls about whether legal costs are deductible from income for tax purposes at this time of year. The answer is – it depends.

If you started a court proceeding to obtain child support or to enforce a child support order, or if you had to defend a court proceeding to reduce child support, you are entitled to claim a deduction for your legal costs. You will have to obtain a letter from your lawyer confirming how much you actually paid for legal fees and disbursements (out of pocket expenses incurred by your lawyer) and when you paid. If there were other issues before the court at the same time, your lawyer will have to set out what percentage of your legal costs related to the application to obtain child support, enforce a child support order or to defend a claim for a reduction of child support.  You submit the letter with your income tax return to claim the deduction.

Unfortunately, if you are the one who is required to pay child support, you are not entitled to any deduction for defending a child support claim, defending enforcement proceedings or bringing an application to change or reduce child support.

Neither the payer or the recipient is entitled to any deduction for legal costs relating to spousal support claims.

For more information see Canada Revenue Agency’s interpretation bulletin IT-99R5.

Living Common Law: Big Changes on the Horizon

Under our current family law, when relationships break down, people who choose to live together rather than get married are treated differently than people who marry.

Married couples have had the benefit of Parts 5 and 6 of the Family Relations Act under which they are entitled to share equally family assets, subject to adjustments which fall under the heading “judicial reapportionment”. Common law couples did not have the benefit of those provisions of the Family Relations Act and had to rely on a complicated determination of their rights based on trust law – either resulting trust or constructive trust.

Many people chose to live common law with the knowledge that on the breakdown of a common law relationship the trust law applied. However, the law is changing.

Within the next number of months the Family Relations Act is going to be replaced by the Family Law Act. Once the Family Law Act  comes into force, married couples and common law couples will be treated the same in terms of property division on the breakdown of their marriage – each spouse will have a right to an undivided one-half interest in all family property and be equally responsible for all family debt, generally speaking. The time frame is from the date on which they started to live together in a marriage like relationship to the date of separation. If a court case is started before the Family Law Act comes into effect, the trust law still applies but as soon as the Family Law Act comes into effect, it will apply.

If, in entering into a common law relationship, it was your intention to keep property separate, now is the time to prepare and sign a cohabitation agreement, clearly setting out how property is to be managed during your relationship and how it is to be divided in the event the relationship breaks down.

Calculating Child Support

In Canada, child support is calculated by reference to the Federal Child Support Guidelines.  In most cases, the amount of child support is calculated on the gross income of the paying party (less annual union dues) and on the number of children for whom support is to be paid.

The Child Support Guidelines have been in effect since 1987, were amended in May 2006 and have now been amended again. The second amendment came into effect on December 31, 2011.

To determine what you should be paying or receiving for child support under the new Guidelines, the Government of Canada has a great website which provides links to not only the official Federal Child Support Tables, but also a simplified version of the Tables and a convenient online look-up tool.  The Government’s website can be accessed here.

The Child Support Guidelines are very helpful when the payor is an employee but the calculation of child support can be trickier when the paying party is self-employed, is not working to capacity or where the parents are sharing parenting of children.  If you or your former partner fall into any of those categories, it makes sense to get some legal advice. The Canadian Bar Association’s Lawyer Referral Service is a great resource for initial summary advice. For $25.00 for a ½ hour consultation, a lawyer will be able to give you some advice particular to your situation.

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