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

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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

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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.

Recent Case from BC Supreme Court

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Shaw v. Shaw, 2014 BCSC 984

On Wednesday, June 4, 2014, the BC Supreme Court website published the Reasons for Judgment on Shaw v. Shaw, 2014 BCSC 984.  The trial judge, Mr. Justice Jenkins, confirmed that parents cannot make claims for retroactive child support where the child in question has ceased to be a “child of the marriage” (meaning that the child has reached the age of majority and is able to move out or provide for themselves).  If your child is getting close to turning (or has recently turned) 19 years old, and you think you may have a claim to retroactive child support, do not wait any longer to obtain legal advice.  Once your child loses their status of “child of the marriage” you may be barred from making a retroactive claim.  A family lawyer can help you determine whether your adult child meets the test for “child of the marriage” and the strength of your claim to retroactive child support.

*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.

Wills, Estates and Succession Act: Separation Revokes Your Inheritance From Your Spouse

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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.*

On March 31, 2014, the long awaited Wills, Estates and Succession Act (known in the legal community as “WESA”) came into force.  It was a long time coming, as the WESA was introduced by the B.C. government in September, 2009 and obtained Royal Assent on October 29, 2009.  Almost five years later, and after undergoing changes to accommodate the new property division regime in the Family Law Act, the WESA is finally here.

The WESA combines the previously separate Estate Administration Act, the Wills Act, and the Wills Variation Act, so that now all provincial legislation governing inheritances is located under one Act.  The WESA contains some provisions which are important to keep in mind in your family law case.

First, the WESA defines spouse in a similar way to the Family Law Act.  Pursuant to s. 2 of the WESA, two persons are spouses for the purpose of the Act if they were both alive immediately prior to the Will-maker’s death and they were married or had lived in a marriage-like relationship for at least 2 years.  Both married and unmarried spouses  cease being spouses when they separate.  That’s right, you don’t have to be divorced to lose your status as a married spouse when applying for relief using the provisions of the WESA!

Second, the WESA provides that a spouse’s entitlement to an inheritance from the other spouse will terminate if the two separate.  S. 56 of the WESA says that if the spouses separated after the Will is made, but before the will-maker dies, when the time comes to distribute the estate any inheritance to the surviving spouse must be distributed instead to the other beneficiaries as if the surviving spouse predeceased the will-maker.

Now, s. 2 of the WESA does allow for the fact that some separations are temporary, and rightly does not revoke spousal status forever based on a temporary separation.  Pursuant to s. 2(2.1), spouses who live together for at least 90 days with the primary purpose being to reconcile, regain their status as spouses.

However, that reconciliation pursuant to s. 2(2.1) does not reinstate those revoked inheritances named in the will to the surviving spouse.  S. 56(3) of the WESA specifically says that a subsequent reconciliation does not reinstate provisions of a will which are revoked because of a separation.

So what does all of this mean?  It means that if you and your spouse experience a separation, and later get back together, you ought to execute a new Will or Wills.  Otherwise, the surviving one of you will receive nothing under the Will-maker’s Will, and will be left with the only option of starting court proceedings against the executor or personal representative in order to obtain a share of the estate.  This can be so even where the temporary separation occurred many years before the death.  Imagine having had a temporary separation 20 years ago, only to find that your spouse’s will, executed 25 years ago, provides nothing for you because of these revocation clauses!

It is always a wise idea, when you are experiencing a temporary or permanent separation from your partner, to seek the advice of a family law lawyer to determine how your rights and entitlements may be affected.

*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.

When Can I Get Into Court?

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Many times family lawyers are asked by clients when they can expect to get into court.  Once you start your court action by filing your Notice of Family Claim, the trial can be months or sometimes years away, as the parties and the lawyers work on disclosure, negotiations, investigations, and finally trial preparation.  Most cases in my experience take just over a year to get to a trial.  Trial dates are typically set well in advance with both parties’ agreement and by consulting the court’s availability through the courthouse website or by contacting the courthouse registry.

In contrast, interim applications can require your appearance at court within weeks or even days of starting your court action.  Just a few examples of court orders that you might apply for in an interim application include: orders restraining the sale of family property, orders requiring disclosure of documents, orders restraining contact between the parties, orders for a parenting schedule for the time leading up to trial, and orders for the immediate payment of support.  The Provincial Court of British Columbia, the Supreme Court of British Columbia, and even the British Columbia Court of Appeal all have their own rules for how much notice you must give the opposing party.  For example, in the Supreme Court of British Columbia, the time period is least at eight business days (not including the day you serve your notice and the day you attend the hearing), unless you get permission from the court to give shorter notice.

Most family law lawyers will make an effort to set down a court date that is convenient for both parties.  Whether you will get to court on an interim application early in your file will depend on the particular facts of your case.

 

*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.

Limited Sittings in BC Supreme Court this Month

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Every once in a while the justices of the Supreme Court of British Columbia have a reading break or a judges’ conference.  This week the New Westminster and Victoria locations will be limiting their court time, and next week there will be no judges or masters in Vancouver, Victoria or New Westminster on May 21, 22, or 23, except for emergency applications.