Summer is Coming. Do you have your parenting time sorted?

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

As the school year winds down and the weather heats up, separated parents in British Columbia and across Canada are gearing up for negotiations. It’s that time of year when separation agreements or court orders are dusted off and reviewed in order to determine the sharing of a finite resource:  summer parenting time.

The summer is a particularly important time to parents and children because it is the time of year when we get to make long-lasting family memories, have uninterrupted time for visits with out-of-town family or to exotic locales, and accumulate some bonding time within the family.

You would be surprised at the length of time that parenting time negotiations can take, so parents should be thinking about starting discussions for this year, either between themselves or through counsel, without delay.

The first step in determining your summer parenting time is to review any written agreement or court order that allocates the time the children spend with each parent.  Does the agreement or order specify a summer scheduleBaseball?  If so, that’s your starting point.  Does the agreement or order specify a method of dispute resolution in case of a disagreement?  Then take steps to follow that method.  For example, if you have a mediation clause in your agreement, and you want to change the parenting time for the summer, book that mediation!

The next step is developing a clear position on when you want to have the children in your care, and why it is important that they be in your care at that time.  For example, do you want to take them out of the province for a couple of weeks?  Identify which days you propose to leave and return, where you want to take the children, and how the children could make up the time with the other parent (if appropriate).  Alternatively, do you want to propose a different schedule for the summer since the children are no longer beholden to a school schedule?  For some families a 50-50 parenting schedule is impracticable where one parent lives far from the school; a move to more equal parenting may be possible in the summertime.

If the parties are not able to resolve the sharing of parenting time by discussion, then they should consider hiring counsel to assist with the negotiations.  A BC family lawyer will give you advice about what to expect should the matter end up in court, and manage the correspondence with the other party’s lawyer.  A BC family lawyer will present you with various options so that you can consider the one that best works for you and your family.

Parties may also consider retaining a parenting coordinator.  A parenting coordinator is typically an impartial family lawyer hired by both parties, who will hear each party’s side and then make a binding determination about temporary changes to the parenting schedule.  This can be a much more cost-efficient way to resolve a dispute, because the parties need not each retain lawyers to attend a contested court application.  More information about parenting coordinators can be found here: http://www.bcparentingcoordinators.com/.

If negotiations fail, and the parties do not want to retain a parenting coordinator, then the last step is an application to court.  You can bring an application to court by filing a Notice of Application and supporting affidavit.  Be sure to serve the opposing party with sufficient days’ notice (8, 12, or 21 business days, depending on whether the order is interim, final, or varying a previous order). Based on these time frames, the best time to apply for July and August parenting time is the beginning of June, and parents who need to retain counsel would be wise to do so in early May.

At an application, the court will consider factors relevant to the best interests of the children.  For example, the court may consider the benefit to the children of going on a holiday with a parent, the benefit to the children of visiting with out-of-town relatives, the reasonableness of the parenting time proposed by the applicant parent, child care during summer months when many children are off school.  The result will turn on the individual facts of your case.

If you want to develop a parenting schedule for summer but don’t know where to start, a family lawyer can assist you through the process.  For any questions about how a lawyer could assist you with your case, contact the writer.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

BC Supreme Court Announcement: Assize List Coming to Vancouver Supreme Court

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the more frustrating aspects of family litigation is waiting for an available date to be able to bring on a court application in Chambers.  The BC Supreme Court recently made an announcement that may simplify the process of getting a hearing date when a party to litigation needs to apply to court for an order.  The Court has announced the introduction of the use of an “assize week” system of scheduling long chambers applications  in the Vancouver Registry.

Applications in Chambers, which generally deal with temporary orders as opposed to final orders, are common in family law because there are often issues that must be dealt with immediately and can’t wait for a trial 12 months away.  Some examples of matters that can be heard by way of an application include: interim child support applications, applications for exclusive use of the family home, orders for sale of property, and interim applications for parenting time.

Often several applications on the same file are heard at once (for example, child support and spousal support, along with parenting orders), which is usually a more efficient way of dealing with disagreements between parties than having multiple court appearances, but having multiple issues heard at once makes it more likely that they become what is known as a “Lengthy Chambers” application, meaning one that is expected to take two or more hours of court time.  The difficulty arising from trying to schedule a lengthy Chambers application is that it can be difficult to get a hearing date within a reasonable period of time.  The process for setting your hearing date for lengthy Chambers applications is that you must schedule your hearing directly with the Supreme Court Registry.  To do that, you must wait until the Court Registry releases available lengthy Chambers dates, which fill up very quickly, and once they are full you have to wait for the next release, usually several weeks away.  At the time of publishing this article, there are currently no available Lengthy Chambers dates for family court files.

The recent announcement by the BC Supreme Court, that parties will have the option to sign up for an Assize week, will help to relieve some of that difficulty.  Signing up for the Assize List means that both parties agree that they will make themselves available for a hearing on short notice during a one-week period.  This will allow parties to have lengthy Chambers applications heard without having to wait for the release of Chambers dates, and will allow them to have time sensitive lengthy Chambers applications heard more swiftly.  In the writer’s view, this is a positive step for family litigants in Vancouver who require court intervention.  The result is an improvement to access to justice for Vancouver family law litigants, and an increase in the efficiency of the court system.

To read the Court’s announcement, go here: http://www.courts.gov.bc.ca/supreme_court/documents/Chambers%20Assize%20List%20Vancouver.pdf

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

What Does it Mean to Be “Common-Law”?

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

More than ever couples are living together before marriage, and after a certain period of time, we tend to say that they are “common-law spouses”.  But what does it mean to be “common-law” with someone?  How long does it take to be common-law spouses with your partner?

First, the term “common law spouse” is a misnomer.  What regular people tend to mean by it is that two people are living together in a marriage-like relationship, in a way that has legal consequences, but they are not married.  However, the Common Law in Canada (which is the law developed over time by judges deciding cases) does not actually put any legal significance on two people in a relationship living together.  Rather, it’s legislation (laws passed by our elected representatives) that determines whether unmarried partners are “spouses” by law.

In Canada, there are various laws that have different tests for what it means to be a common-law spouse.  The tests differ across the provinces and according to area of law.  For example, the length of time you need to cohabit before you are a spouse is different in Ontario and British Columbia, and the test for common-law spouses is different in the income tax context than the family law context.

In British Columbia, pursuant to section 3 of the Family Law Act, you are considered a common-law spouse for the purposes of entitlement to spousal support, property division, and pension division if you have lived together in a marriage-like relationship for at least two years.  However, if you have lived with a person in a marriage-like relationship for less than two years, but you have a child together, then you are considered a common-law spouse for the purpose of spousal support but not property and pension division.  If you are cohabiting with someone, but the relationship isn’t “marriage-like”, then you aren’t spouses and there is no entitlement to spousal support or property and pension division.

Whether a relationship is marriage-like is a surprisingly complicated question, and it depends on the individual facts of each case.  If you have questions about whether you are in a marriage-like relationship, and the legal consequences arising from it, the best thing to do is to have a consultation with a family lawyer.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Parenting over the Holidays and Parenting Plans

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

Co-parenting with your ex-spouse in the month of December can be like navigating a minefield.  There is something about the emotions of the season, the emphasis on family time, the time off school, the expectations of extended family members, and the importance of certain days this month that make sharing parenting time in December really difficult for some families.  The tension that it creates impacts the children more than some parents realize. christmas-ornament

As family lawyers we try to check in with our clients in September or October to find out if they need any assistance working out parenting time in December.  If you have waited until the second week of December to figure out parenting time on the 25th, for most cases it will be too late to start the process of bringing on an application in court in time for Christmas.   Remember that the court is closed to all but emergency applications from December 17 to January 3.

That said, it is almost never too late to reach a negotiated agreement with your ex regarding parenting time.  A parenting plan can be comprehensive and apply all year, or it can be limited to a certain period of time.  Having a plan for the holidays in writing is very helpful to remind the parties of what they agreed to.  It can help reduce conflict between the parents, which in turn helps the kids have a stress-free, enjoyable holiday with both sides.  A parenting plan that is signed by both parties in the presence of a witness is enforceable, meaning that if one of the parties breaches the plan the other can seek relief in court by way of make-up-parenting time, fines, and other sanctions.

The Department of Justice has some useful resources on its website to assist people in developing their parenting plans.  For a Parenting Plan Checklist, click here: http://justice.gc.ca/eng/fl-df/parent/ppc-lvppp/index.html.  We recommend checking in with a family lawyer for independent legal advice before entering into a parenting plan.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

 

Top Tips for Form 8 Financial Statements

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

A Form 8 Financial Statement is a Supreme Court form used by family law litigants to exchange financial information.  It has 6 parts: 1) Income, 2) Expenses, 3) Property, 4) Special or Extraordinary Expenses, 5) Undue Hardship and 6) Income of Other Persons in Household.

The Form 8 Financial Statement is a crucial document in litigation because it provides asigning-document condensed summary of the financial circumstances of the litigant.  Because of the form’s usefulness, BC family lawyers often will exchange Form 8 Financial Statements with opposing counsel during settlement negotiations.  Whether in litigation or negotiations, the importance of a well-drafted Form 8 Financial Statement to a family law case cannot be understated.

Whether you are preparing your own Form 8 Financial Statement or you are working with your BC family lawyer, here are a few tips to keep in mind:

  1. Be accurate.

The Form 8 Financial Statement is a statement sworn under oath, meaning that the party swearing the document to be true should be prepared to be cross-examined on the facts alleged in the form at an Examination for Discovery or at trial.  Above all else, the most important part of completing a Form 8 Financial Statement is ensuring that it is true.  If there are errors in your Form 8 Financial Statements, it can undermine your credibility before the court.  If you are uncertain about the information you are providing, either take steps to increase your certainty or indicate that the amount is approximate or subject to verification.  For example, you may wish to indicate that the value of your employee pension is “unknown” if you have not yet had a pension valuation.

  1. Be detailed.

The Form 8 Financial Statement can be used by the parties and their lawyers as a guide to the parties’ incomes, assets and debts, and will be referred to again and again throughout a family law case.   Making sure that the Form 8 Financial Statement is detailed and clear will make it a more useful document to the parties and to the court.  For example, when you list your bank accounts, specify the institution, the type of account, and the account number.  Indicate whether your assets are held solely by you or jointly with another person (even if it’s just your spouse).  Make sure to indicate when you acquired your assets and debts, at least to the extent that it is clear whether the asset or debt was acquired before, during, or after the cohabitation.  Indicate the basis upon which you have fixed a value to the property, such as an appraisal, a BC Property Tax Assessment, or an estimate.

  1. Make sure that you have your relevant attachments.

Family Law litigants are required by Rule 5-1 of the BC Supreme Court Family Rules to produce a number of income documents, and all of the documents that apply to you must be attached to your Form 8 Financial Statement.  These almost always include your last 3 years of tax returns, notices of assessment, notices of reassessment, and your most recent property tax assessment.  For a full list please review Rule 5-1 on the www.bclaws.ca website.

  1. Include additional documents where necessary.

Although documents like bank statements and credit card statements are not legally required to be attached to the Form 8 Financial Statement, in many cases it can be very helpful to attach your most recent account statements so that the reader of the Form 8 Financial Statement can see where you obtained your values for the items under Part 3 – Property.  Balances on accounts can fluctuate from day to day, and by providing an account statement you provide a basis upon which to fix a value.

  1. Don’t be afraid to use footnotes.

Clients often have questions about how to complete the Form 8 Financial Statement, given that we are asking them to provide a financial “snap shot” during a period of profound changes to their finances. For example, in Part 2 – Expenses, a person may currently have minimal expenses when they swear the Form 8 Financial Statement because the parties are still under the same roof, but they want to be able to indicate what the housing expense will be when they move out in a month.  A footnote can provide that explanation.  Similarly, a footnote can be included to explain an expense where that expense has been estimated, such as estimating that “vacation” expenses are $375 per month, because you take two vacations per year that each cost $2,250.  These explanations can be incredibly useful when you are under cross-examination, as the Form 8 Financial Statement does not leave the reader guessing as to how the numbers were determined.

  1. Fill out all the parts of the document.

Read the entire document and ensure that every part applicable to you is completed.  Carefully consider: have you disposed of property in the last two years (Part 3), does your child have expenses that meet the test for special and extraordinary expenses (Part 4); do you meet the test for undue hardship (Part 5), are there other income-earning adults in your household (Part 6)?  A full and careful consideration of these questions is essential to the proper completion of a Form 8 Financial Statement.

  1. Ask yourself: does it make sense?

When your Form 8 Financial Statement has been filled in, but prior to swearing it to be true, you should review the document again and carefully consider whether the information in the Form is internally consistent.  For example, if your actual expenses greatly exceed your stated income, then we would expect to see a corresponding debt or some other explanation for the discrepancy.  If there is no explanation for the discrepancy, then it’s time to look back at either your income or your expenses to see if you have missed some piece of information.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Nasty Doesn’t Work in Family Court

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

Intimate partners are expert in knowing how to push each other’s pain points, and when a separation turns into a legal action, it can be difficult to resist the urge to provide evidence of every embarrassing fact or salacious detail about the other party.  The adversarial system pits the parties against each other, and when parenting is at issue, it can be difficult for litigants to discern what is relevant and what is plain-old mud-slinging.  However, a party must always consider whether the facts they try to enter into evidence are relevant and probative to the issues before the court, or they risk their mud-slinging resulting in their own character looking sullied.

Since Reasons for Judgment were published in the case of J.S. v. M.M., 2016 ONSC 2179, the link to the Reasons has been copied and emailed between family law lawyers around the country.  The facts of the case are not unusual, but it’s the pointed and exasperated writing style of Mr. Justice Pazaratz that makes the case so compelling.  Pazaratz J. held nothing back in expressing his frustration at being asked to consider (and view, in full colour) sexually explicit photographs of the mother in a custody case.

In that case, Mr. S applied for temporary custody of the two children of the marriage and primary residence of his son. He argued that the mother was not adequately caring for boy, who had special needs.  He alleged that she was too preoccupied with her new boyfriend.  man-person-smartphone-technologyIn his affidavit submitted in support of his application, Mr. S included screenshots taken from the mother’s cell phone (which she thought was discarded) of “sexts” and pictures exchanged between the mother and her boyfriend.  The judge rightly found that these bore no relevance to the matters before the court.  In the words of Mr. Justice Pazaratz, “The mother has a sex life. Big deal.”

Mr.  S’s strategy was particularly flawed given that he had tried to allege that the sexually explicit material was relevant because the parties’ son had found the cell phone and viewed the material, causing trauma to the boy. The problem with that line of reasoning was that Mr. S himself had left the phone in his residence unattended, giving his son access to it.

Pazaratz J. held no punches when he says in his Reasons, “nasty doesn’t work”, and “nasty won’t be tolerated.”

Ultimately, Mr. S’s application for primary residency of his son was dismissed, although he was able to obtain some increased access to both children.  The Court struck the sexually explicit photographs and texts from the record and prohibited Mr. S from showing the materials to any other person.   The Court invited submissions on costs, and it is very likely that once the submissions are made, there will be cost consequences for Mr. S’s litigation conduct.

More importantly than court costs, however, is possibility of co-parenting going forward.  The level of conflict between separated parents has an immense impact on the development of the children. Mr. S has likely irreparably damaged the prospects of the children being able to reap the benefits of parents who are amicable with each other.  In the words of the presiding judge: “How will the parents ever again be able to get along?”

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

BC Supreme Court Family Rules Amendments

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On February 18, 2016, the British Columbia Supreme Court announced a January 28, 2016
Order in Counsel making amendments to the Supreme Court Family Rules effective July 1, 2016.  Notable among the amendments is to Form 20 and Form 21, which are the List of Documents and Appointment to Examine for Discovery, respectively.  typing-vintage-technology-keyboard

The List of Documents is a form that tells the other party which relevant documents are in the possession and control of the listing party.  The Appointment to Examine for Discovery is the form that sets the time and place for the other party to be examined under oath in advance of the trial.  Lists of Documents and Examinations for Discovery facilitate and require broad and comprehensive disclosure, and typical family litigation will result in the parties exchanging very sensitive information and documents.  The recent amendments call for including in the forms the implied undertaking of confidentiality over documents exchanged in family litigation:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judicial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.”

This implied undertaking is not at all a new concept.  You may not use documents or information obtained in litigation for any other purpose except the litigation, unless you fall within a few narrow exceptions.  Family law litigants have been bound by this rule for years.  However lay litigants are increasingly common, and most non-lawyers would not have reason to be aware of the implied undertaking until now.   The amendments make it clear on the face of the documents: disclosure obtained in family cases is for use in the litigation only.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.