Polyamory and Divorce


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

Polyamory is a hot topic these days.  Societal expectations for relationships seem to be becoming more permissive, and with television shows like “Big Love”, and major news networks publishing polyamory “explainers” (https://globalnews.ca/news/4320857/what-is-polyamory/), polyamory appears to be working its way somewhat closer to the mainstream.  It’s clearly not a topic that is going away anytime soon.  But polyamorous relationships, just like other more “traditional” relationships, have the potential to break down. And what happens when a spousal polyamorous relationship breaks down?  What happens in a polyamorous divorce?

In British Columbia, the Family Law Act sets out two ways in which you can become a spouse: you can marry your partner, or you can live with them for two years in a marriage-like relationship.  There is nothing in the Family Law Act that says you can only have one spouse.  Therefore, if you reside with more than one person, and you have a marriage-like relationship with each of them, then logic dictates that you can have more than one spouse at a time.

If one or both of those relationships were to break down, giving rise to potential Family Law Act claims for spousal support or property division, the matter would become quite complicated rather quickly.

The Family Law Act presumes that property will be divided in two: s. 81 says that “on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.”  That presumption clearly cannot work if there are three or more spouses. The court would have to fashion a remedy tailor-made to the circumstances of the parties, using section 95 of the Family Law Act, which allows for the unequal division of family property by order of the court.

In making orders for unequal property division, courts will consider the duration of the relationship, any agreements between the parties, contributions to the career of the other spouse, the incursion of family debt and each spouse’s ability to pay a share of the debt, whether a spouse decreased the value of property in bad faith, tax liabilities, and any factors that would cause significant unfairness.  It would be quite tricky to apply these factors to three or more people rather than the usual two.  The usual zero-sum analysis simply doesn’t apply.

It’s quite likely that there have already been several polyamorous separations where the parties have had to divide property, but we have not yet seen a public trial decision regarding polyamorous property division or support under the Family Law Act.  The uncertainty in how the law would be applied, as well as the cost of a three- (or more) party trial, makes it more risky for polyamorous exes to pursue their property and support claims in court.  Anyone who finds themselves in the midst of a separation from a polyamorous marriage-like relationship would be well advised to seek legal counsel to ensure that their interests are protected.

*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


*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.

Ex Tapes: Recording Marital Discord


*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


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.