Ex Tapes: Recording Marital Discord

Standard

*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 most difficult challenges survivors of abuse in custody and guardianship cases face is proving to the judge that they have been abused.  Abuse survivors are often faced with the risk of being found to be exaggerating or fabricating their allegations in order to gain an upper hand in the litigation.  Sadly, survivors are put in a position of having to decide whether their evidence is “good enough” such that they will be believed.  Some survivors choose not to lead evidence regarding abuse because they are concerned that it will have a negative impact on how the court will view their credibility.

In the recent BC Supreme Court decision of N.D.T. v. T.F.T., 2016 BCSC 134, the Claimant was successful in proving her allegations of abuse.  She was able to show that the Respondent had been verbally abusive, that the abuse had taken place in the presence of the parties’ children, and that the Respondent’s conduct reflected his capacity to parent the children.  The BC Family Law Act explicitly requires BC Courts to consider the impact of family violence on children, whether or not it has been directed at the children.  The Claimant, referred to in Mr. Justice Saunders’ judgment as “Ms. T”, consequently won her claims for custody, guardianship and parenting time.  Her method of proof: video recordings.

Ms. T had video recorded the parties’ arguments for a period of approximately two years leading up to the date of separation.  Videos of 19 separate incidents were admitted into evidence.  That takes riphone_notes.jpgeal forethought!

What makes Ms. T’s success even more remarkable is that she won despite an expert report that made recommendations that Ms. T should get counselling to shift her focus away from drawing the children into the conflict and “placing blame” on her husband.

In the past, BC courts have been disapproving of surreptitious recordings in family cases.  Recording a former spouse without permission has been viewed as contributing to mistrust and conflict between parties; and yet time and time again videos and audio recordings are admitted into evidence.  In this case, one has to wonder if Ms. T would have been so resolutely successful on the parenting issues had she not been so proactive in collecting evidence during the marriage.

It feels unsettling to think that unhappy spouses will start recording each other’s worst moments for years on end with the aim to build a case for a family law trial.  However, with recording devices literally at everyone’s finger tips, we can expect more of this evidence to come.

*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.

Back Up Before You Shack Up! Seven Essential Steps to Take Before Moving in Together

Standard

1. Understand what you are getting into. Did you know that in British Columbia you become a spouse pursuant to the Family Law Act if you have lived in a “marriage-like relationship” for two or more years? Did you know that you can become responsible for child support of your partner’s children if you are a) a spouse of the parent , and b) have contributed to the support of the child for as little as a year? Living together is serious business, and so it is important to go into it with eyes wide open.

Couple Holding Hands In Love  With Blue Sky.jpg

2. See a family lawyer. Have you read the Family Law Act? Well, if you are thinking of moving in with your love, you ought to familiarize yourself with the basics of the Act because it will govern what happens to family property and family debt if your relationship ends. Even with just one appointment, a BC Family Law Lawyer can help you understand the basic rights and responsibilities imposed by the Family Law Act when you cohabit with your romantic partner.

3. Take Stock. What assets and liabilities do you have? Once you become a spouse, you can be sued for property division and spousal support if your relationship ends. Now is the time to tally up the assets you have and to consider whether your income level exposes you to a potential spousal support claim. It’s a good idea to print off a copy of all of your bank accounts, investments and debts so that you have a record of the balances as at the time you started living together. Keep those records tucked away just in case.

4. Think carefully before giving away your furniture. Assets brought into the relationship are yours to keep, but you lose that benefit if you dispose of them during the relationship. Furniture purchased after you move in together will likely be family property, subject to division upon relationship breakdown.

5. Talk to your partner about your expectations. The time to sort out the division of household duties is before you move in together. This would be a good time to think about how each of you will contribute to household expenses. Consider couples counselling if either of you are finding it difficult to have these conversations. The time to establish effective communication is now!

6. Appraise real property. If you have real property (ie. a house, condominium, or other land) you should consider getting an appraisal. In general, property that you bring into a spousal relationship is excluded from division but the increase to excluded assets is divided between you. In urban areas in British Columbia, real property often can increase in value by tens of thousands of dollars within a short time. It is important that you know what the value is at the outset so that if your relationship does break down, you know your exposure to a claim by your spouse.

7. Consider a cohabitation agreement. A properly executed cohabitation agreement can help you define the expectations you each have for living together, and reduce the chance of litigation if you do break up. You can use a cohabitation to alter or completely opt out of the rules set out in the Family Law Act. One of the requirements of a cohabitation agreement is that both spouses understand the nature and consequences of the agreement, so make sure that you see a lawyer before signing anything.

*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.

Teachers Strike Supplement Creates Potential Family Law Conflict

Standard

*You can find this and other posts by Virginia K. Richards and her colleagues on the Henderson Heinrichs LLP website.

The strike is on and many parents have already applied for their $40-per-day Temporary Education Support for Parents (“TESP”) offered by the British Columbia government, for public school students aged 12 and under who are not able to attend school due to the teacher’s strike.  For separated or divorced parents in British Columbia, the question arises: who gets the money?

The BC government website set up to accept registration for the TESP (www.etax.gov.bc.ca/btp/tesp), provides that you must be the “parent/ primary caregiver of each student you register”.  The website elaborates:

The parent/ primary caregiver is the person primarily responsible for the care and upbringing of the student.  While usually the parent, a primary caregiver could also be a: step-parent, legal guardian, adoptive parent (including a parent that has not yet completed the adoption process but the student lives with them), foster parent, family member who normally cares for the student (such as a grandparent), host parent for international students, caregiver under a temporary custody arrangement.

Under “Frequently Asked Questions”, the primary caregiver is described as “the person responsible for the day to day care and upbringing of the student for the majority of the time.”  For separated or divorced parents, the parents themselves must decide which parent will register for the payment, as the payments will be issued to one parent only. 

Many separated or divorced parents in British Columbia will be able to agree upon who will apply and how the TESP will be used, particularly where the cost of strike child care matches the TESP rate of $40 per day.  But there will always be those cases where the parties are unable to come to consensus.  Separated or divorced parents may find themselves disputing how the TESP ought to be used in the event the parties do not require additional paid childcare during the strike, or on the flip side, if the TESP is insufficient to cover the family’s childcare needs.  There also appears to be no recourse built into the TESP program where a parent applies for the supplement despite not having care and control of the children for the majority of the time.  With the TESP set at approximately $1,200 per student per month, BC Family Lawyers can expect to see the allocation of the money crop up as an issue in child and spousal support applications in the BC Courts long after the strike is over.   However, parents would be wise to work out an agreement on the TESP between themselves, or most of that money will end up with the lawyers!

*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 Government pulls back some funding for Family Law Pilot Project

Standard

Lawyers across Vancouver were excited to learn about the Family Law Pilot Project in the Vancouver and New Westminster Supreme Court locations.  While the pilot is still set to continue, unfortunately, the British Columbia branch of the Canadian Bar Association has emailed its members to say that the government has withdrawn funding that had been earmarked to pay for a research and litigation support lawyer who would work for the Project.

New Family Law Pilot Project at Supreme Court

Standard

The Vancouver and New Westminster locations of the British Columbia Supreme Court announced on July 14, 2014 that a new Family Law Pilot Project will start on September 2, 2014.  The project will involve appointing a roster of judges that will be assigned to preside exclusively over family law applications and trials for a period of approximately six months each.  The project is slated to continue for two years, and will be supported by dedicated legal counsel who will provide research support to our BC Supreme Court Justices.  This is great news for family lawyers as the area of family law can be quite different from civil litigation, and many justices have no experience practicing family law when they take up their spot on the bench.  The pilot project is perfectly timed to address the uncertainty surrounding the new Family Law Act and some of the trickier questions that have emerged from its interpretation.  

BC Court Justice Orders 7 Day Imprisonment for Failure to Pay Support

Standard

On Monday, July 14, 2014, the Supreme Court of British Columbia published a recent judgment by the Honourable Mr. Justice Jenkins wherein the payor husband was found in contempt of court for failing to comply with an order to pay child support.

The parties had attended a trial before the same Justice in 2012 and the Court imputed an income of $110,000 to the payor husband, despite the payor husband arguing that his true income was significantly lower. In February 2014, the husband stopped making the ordered child support payments and unilaterally reduced the amounts he provided to the recipient wife, saying that he would be Barbed Wire Fence With Plantsmaking payments calculated according to a lower income that he said he was earning.

On application, Mr. Justice Jenkins rejected the husband’s evidence that the husband had become destitute and was financially incapable of complying with the child support order. The Court commented that the husband’s evidence was disorganized and failed to raise a reasonable doubt as to his ability to comply with the order. The Court concluded that the husband’s disobedience of the court order was willful, and sentenced him to 7 days imprisonment, which sentence was suspended for 30 days to allow the husband some time to pay the child support arrears of over $19,000 in order to purge his contempt.

An interesting point made in this judgment is that the Court specifically rejected the husband’s argument that the wife’s refusal to allow access to the child caused him to incur legal fees (to pursue applications for access), which legal fees made it impossible for him to pay the support. Relying on the comments of another judge in 2012, Mr. Justice Jenkins said, “a parent is not entitled to deprive his or her children to pay litigation expenses” (at paragraph 25). So the take-home message is to make the payment of child support a priority to your legal fees.

You can see the full text of the decision here: T.T. v. C.G., 2014 BCSC 1279.

*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.

Marriage No Longer Revokes a Will

Standard

The wedding day is a happy and exciting time for newlyweds but if you ask any Vancouver Family Law Lawyer they will tell you that there is some important paper work to attend to when a couple marries.  One document which newlyweds would be wise to turn their minds to is their will.  With the recent March 31, 2014 introduction of the new Wills, Estates and Succession Act (known in legal circles as the “WESA”), the law regarding marriage and wills has changed.

Under the old Wills Act, a marriage revoked any previous wills that a newlywed had made before the marriage date, except where the will-maker expressly stated on the will that it was made in contemplation of that marriage.  As a result, most wills were revoked by a marriage and in the absence of a new will, the estates would pass by the default rules of intestacy.  Intestacy rules set out the guidelines for distributing an estate without a will, and in BC those rules set out a formula to provide for the spouse and children of the deceased person. In the result, the spouse and children of the deceased would receive a share of the estate.

The new WESA changes that rule and now a marriage will not revoke a prior will, even if that will was made years before you even met your spouse.  The estate will be distributed as set out in the will, even though it doesn’t provide anything to your new bride or groom.  If you have a will that predates the marriage, and that will does not provide for your new spouse or resulting children, when you pass away your grieving spouse and children will be compelled to pursue an action against the Executor of your estate, which is the last thing you want for the loved ones you leave behind.

If you are planning to marry, make one of your “to-do” list items an appointment with a lawyer.  A Vancouver Family Law Lawyer will advise what kind of legal implications you are facing, and what kind of agreements or documents can help protect you and your family.

*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.