How Long Will It Take?
The length of time required to achieve a particular step in your case ( such as obtaining a temporary court order), or a final resolution (such as the final decision of a trial judge, or a written separation agreement) depends upon a great number of factors, such as the extent to which the parties are prepared to compromise or their determination to have a judge decide matters for them. Interim applications to obtain urgent orders can be obtained in less than 24 hours for a true emergency ( standby judges for example, can hear your application & grant urgent orders such as injunctions or restraining orders during the middle of the night if truly necessary). However most commonly, interim applications are heard within a few weeks of the paper work being prepared, filed & served.
The waiting time for a hearing to proceed is longer in Provincial Court than it is in Supreme Court. Agreements reached through negotiations or mediation are often reached over the course of a few weeks to perhaps as long as a year or more depending upon each party’s willingness to compromise. If you set up your free initial consultation with one of our Surrey Divorce lawyers, we will be able to provide you with a typical range of time required to resolve your particular type of dispute.
How Much Will It Cost?
You will find if you meet with several lawyers that hourly rates fluctuate in accordance with each lawyer’s years of experience. The more years that a lawyer specializes in family law, the higher his or her hourly rate is likely to be. Most work conducted in divorce or separation cases is charged on an hourly basis, though there are some fixed fee services available for certain services such as obtaining an uncontested divorce or drafting a simple separation or cohabitation agreement where there is no dispute between the parties and thus no need to expend time negotiating. Some matters can be handled by junior lawyers at much lower hourly rates than more complex matters requiring the services of a senior family law lawyer.
By fully disclosing your particular situation to one of our Vancouver or Surrey Family Law lawyers, we can explain the typical range of fees that are usually incurred for each step of the litigation so that you can make the best possible decision for your particular situation.
How Is Custody & Access Determined?
The basic answer is that matters relating to children are determined in accordance with what is in the particular child’s best interests. Generally judges try to maintain stability for the children such that whatever arrangement the parties had in place prior to their relationship breakdown should be maintained in the post separation period provided that it maximizes the child’s time with each parent.
In fact since March of 2013, the terms “custody” and “access” are no longer used in family law or divorce disputes. Instead the term “guardianship” & “parenting time” are used.
Generally the courts are inclined to award joint or shared guardianship of children so that both parents are entitled to be kept informed and have input into all matters relating to the children’s general health, welfare, and education. It is less common for the courts to deny a parent guardianship rights but that is done in circumstances where the weight of the evidence convinces the judge that a parent poses a significant risk to the child’s health or welfare, which may include issues relating to a parent’s use of drugs or alcohol, their mental health, a propensity for violence, or the child having been exposed to acts of violence by a parent (whether against the child or against any other person or object) in the child’s presence.
One of our Surrey divorce lawyers or Vancouver Family law lawyers will be pleased to advise you in a free initial consultation as to how your particular fact situation can impact the issue of child custody or guardianship.
How Frequent Should Visitation Be?
Generally the court’s approach to parenting time is to put an arrangement in place that maximizes the amount of time children spend in the care of each parent. Courts recognize that once a couple separates, there are two homes in which the children will spend their time and that children ought to spend time each week with each of their parents. Judges are not concerned with determining who is the better parent. As long as a parent has sufficient parenting skills, they will be permitted to have parenting time with their children even if the other parent is viewed as the best parent there can be.
One of our Surrey divorce lawyers or Vancouver Family law lawyers will be pleased to advise you in a free initial consultation as to how your particular fact situation can impact the issue of child parenting time.
Should I Move Out Of The Family Home?
In any legal dispute you should not take any drastic step without first obtaining legal advice as your actions are likely to have a significant effect on the determination of your legal rights and obligations. As bad as your situation maybe, moving out of the home may make it impossible for you to ever re-enter the home. An agreement for one spouse to move out of the home can often be used as leverage to obtain other interim agreements such as parenting time with children or interim responsibility for various household bills.
Similarly unilaterally deciding to stop contributing to household bills or to cut off services to the home such as cable, hydro, telephone, gas etc can be a decision that causes significant blow back if the matter proceeds to court. Judges will often be very upset with a party who takes such unilateral actions and will be more sympathetic to the “innocent” party in determine interim issues such as occupation of the home , financial support obligations, etc.
It is vital in every family law dispute that you obtain legal advice before you take any action which may affect your rights and obligations. Even voluntarily paying various bills or providing financial support to your spouse, without first obtains legal advice can come back to haunt you as such voluntary pavements may serve as independent evidence of your ability to afford to pay a certain level of financial support going long into the future.
If you set up your free initial consultation with one of our Surrey Divorce lawyers, we will be able to provide you with a typical range of time required to resolve your particular type of dispute.
What If There Are Drugs, Alcohol Or Violence Involved?
When deciding matters of guardianship and/or parenting time, Courts are obligated to consider the impact of any violence witnessed or experienced by the children. The use & abuse of alcohol or drugs by a parent will obviously also be considered by the courts whenever dealing in issues involving children.
It is not uncommon for courts to impose supervision of parenting time when the weight of the evidence convinces a judge that drugs, alcohol or violence may put children at risk.
With over 25 years of courtroom experience, our Vancouver Family Law lawyers & Surrey Divorce lawyers will listen to your particular situation and concerns in a free initial consultation and advise you as to the best approach to take to protect your children’s best interests.
How Do I Get Financial Support Quickly?
Financial support is determined by a number of factors such as each party’s respective income, the length of the couple’s cohabitation or marriage, the lifestyle typically enjoyed by the couple prior to their separation, how the parenting time of the children is being divided, the existence of any prenuptial or cohabitation agreement, each party’s need for and ability to pay financial support, and other factors.
Once you have retained a lawyer we can send your spouse demand letters for interim relief or failing an agreement we can bring on an interim court application to obtain orders for interim spousal and or child support as quickly as the law will permit.
At a free initial consultation with one of our Vancouver Divorce attorneys we can explain the process, timelines, and fees involved in obtaining financial support for you or your children & the factors to be consider in each individual case.
How Do I Prevent Assets From Being Sold Or Transferred?
It is important to speak with a lawyer as quickly as possible if you are concerned about assets ( Real Property, Bank Accounts, Shares, GIC’s, investments, chattels, or any valuable asset) from being disposed of, particularly if the assets in question represent the majority of a couple’s accumulated wealth. We can get into court quickly to obtain a restraining order or an injunction to prevent an asset from being sold, transferred or removed from the jurisdiction of the court.
At a free initial consultation with one of our Surrey Divorce lawyers, we can assess your situation and advise you as to whether it is necessary or makes financial sense to bring on an urgent application to obtain a restraining order or an injunction.
How Do The Courts Decide These Issues & How Quickly Can I Get Help?
If you have an issue that requires a court order, it will be necessary for a court application to be drafted, filed in court & served on the opposing party. At the hearing of the application, the presiding judge will make his or her decision based upon the balance of the evidence presented in court either by way of testimony of and cross examination of witnesses or written testimony contained in sworn affidavits (depending upon the type of hearing). There are various rule regarding the timelines required ( # of days between filing, serving court documents and the date of the actual hearing. In urgent circumstances a Judge can grant an order without service having occurred, or upon substituted service, or can shorten the time periods normally required in order to allow a hearing to take place earlier than the normal rules require.
At a free initial consultation with one of our Surrey Divorce lawyers or Vancouver Family Law lawyers, we can advise you as to the likelihood of your application being granted and whether there is a sufficient factual basis or necessity for your application to proceed on an urgent basis.
How Can We Settle Without Going To Court?
Generally speaking, going to court with the assistance of an experienced lawyer can be very expensive. If possible it is always preferable to see if matters can be resolved through negotiation, compromise and settlement. In many circumstances having a demand letter prepared outlining the legal opinion you have received on your particular issue which also highlights the costs and consequences of going to court, will help move the opposing party toward settling outside of court – particularly once they have received legal advice from their own lawyer advising them as to whether the representations made in a lawyer’s demand letter are accurate or are exaggerated. Another approach is for both parties to engage a mediator or Parenting Coordinator to assist the parties in communicating with each other and negotiating a binding settlement.
Our Surrey Family Law lawyers and Vancouver Divorce lawyers will discuss all settlement options with you and encourage you to avoid the costs of litigation by helping you to devise a settlement strategy whenever appropriate.
During a separation, how is child custody decided?
The term “custody” is full of negative connotations such as custody battles or disputes. In fact, the term “custody” has even eliminated under the B.C. Family Law Act in 2013 and is on route to being eliminated federally by the New Divorce Act. More than simply referring to the physical location of a child, proper childcare agreements should include guidelines and parameters for day-to-day care. More appropriate terms include:
- Parenting: the scheduling and day-to-day care of the child/children.
- Guardianship: the right to be involved in decision making in respect to children’s, welfare, education, religious practice, etc.
During a separation, joint guardianship is commonly awarded. There are exceptions to this rule, as in the case of present addictions or violent behaviour. In most cases within the court, the ideal scenario is one where both parents are able to take an active role in decision making and daily lives of children. This is what makes joint care such a popular option, as opposed to the less common sole custody.
How are Housing Guidelines and Schedules Designed for Children, Following a Separation?
The goal of any separation where children are involved, is to observe their best interests, avoiding stressful situations while encouraging maximum contact between both parents. In cases where parents are unable to successfully negotiate time spent, it is left up to a court to come up with a solution. These agreements will often look to the child’s history, leading up to the separation, in order to create a plan that best suits their needs. Change is inevitable when dealing with a separation but this does not mean that there needs to be a negative impact on children. After considering each parent’s schedule, ability levels and capacity to directly care for the children (generally preferring that children are given direct parental care over unrelated third parties, such as paid caregivers like nannies or daycare centres), a decision is met regarding a joint care schedule.
What Happens When One Parent Claims to be the Better Guardian? (For Example, one parent claims to have been more involved and therefore demands more time with the children).
During the 1980s and 1990s, it was not uncommon for one parent to claim being “more involved” than the other. This might have referred to which party was able to spend more time providing hands-on care for children. Since then, court rulings have evolved to recognize that this does not necessary make the “better” As long as a parent is capable and engaged, they may be given equal parenting time and responsibilities. Many studies that have spanned several decades have established that, following divorce or separation, children do better in the long term when they are raised by both parents in a shared environment instead of having just one fit into a primary care roll. Now, it is not uncommon see a care roll that is split 50/50 between both parties, even if one had a more primary role preceding the split.
Does the Established Parenting Schedule Have An Impact on How Much Child Support is Paid?
The short answer here is, yes. If children are shared equally, the amount of child support due each month becomes a set amount that each party would pay based on their incomes.
What Should Someone Do When They Are Involved in a Separation?
There are plenty of articles online, offering up tales of experience and tidbits but it is strongly recommended that anyone getting separated, should seek out legal advice from an experienced lawyer. When drafting a basic agreement, it is common enough to focus only on obvious wants/needs. Even when taking care of those issues of primary importance, there are other things that can slip through the cracks. Consulting with a professional helps to shine a light on the rights and obligations of each party before they sign anything or enter into any verbal agreements for support or other issues.
What are the alternative methods to resolve differences without going to court?
A separation or divorce is a stressful experience for everyone involved, and court only serves to further this stress. In a situation where emotions run high, conflict is bound to happen. Taking these issues through the court system can be a long, drawn out and expensive practice. Any legal dispute begins with negotiations. Negotiation involves parties gathering together to discuss issues in the hopes of reaching an agreement, but this is not always possible. Many ex-spouses believe that trials always follow failed negotiations but court is not the only option. Options for settling the disputes outside of courts are mediation and arbitration or, in Family Law disputes through a Parenting Co-Ordinator.
What is mediation and arbitration?
Ongoing conflicts can often benefit from a fresh set of eyes, usually the eyes of an unbiased or neutral third party. If negotiations break down or parties are unable to come to an agreement, this third party – or parties – come in the form of either mediation or arbitration:
Mediation: is a process where separating spouses meet together in a boardroom (or in some cases, have a mediator shuttling back and forth). This is an informal meeting, often voluntarily but can be required by a Notice to Mandate or by mandate by a contract clause during commercial disputes. Mediators are typically a person with patience, persistence, common sense and a plethora of negotiation techniques. The overall goal of a mediator is to ensure that both parties feel heard and both sides of the discussion are presented clearly in the hopes of finding a middle ground. Mediators do not have the power to force a solution but can offer insight into what court rulings would likely be and how trial would likely resolve this issue.
Arbitration: can involve a single person or panel of unbiased experts to review case details such as facts, applicable laws or any outstanding contracts or agreements that are in place. Arbitrators can be chosen by disputing parties and are usually experts in a specific field or area. Dispute settlements reached by arbitrators can be binding or subject to review by a court, should one party disagree with the ruling.
What happens if the parties cannot reach an agreement?
If parties cannot agree from the outset of a separation, mediation is a natural next step. If mediation fails, arbitration can commence. During this arbitration, evidence and legal documents are presented to both parties, just as it would be in a court setting. Arbitration is often a less formal and speedier practice than a trial but can run over long periods in the case of Family Law. During this case, a Parenting Co-Ordinator is appointed. This is an arbitrator who is connected with a case over a period of 1-2 years, as opposed to a short session. Over this time, the Parenting Co-Ordinator works to settle family disputes that occur during this period. The first steps to resolution is, as always, mediation. Should both parties fail to reach an agreement during this mediation, this arbitrator is able to make a determination that is binding to both parties.
How is mediation, arbitration or use of a parenting co-ordinator better than going through the courts?
Whether a couple has been together for a year or a decade, relationships have lengthy backstories. Few people realize that, when going to trial, the judge only hears from each side for less than four hours per day of the trial. This might seem like a sufficient amount of time but these minutes tick by quickly. After several days, the judge then renders a decision that affects parties for years to come. In the case of mediation and arbitration, there is much more time spent on cases in a face-to-face setting. These meetings can often last for 10-12 her per day, allowing for more in-depth, personalized discussions.
There are many reasons why mediation, arbitration or a parenting co-ordinator are a better option than trial: affordability, timely resolutions, private sessions, confidentiality, accessibility and can often help to preserve the interrelationship between separating parties. The cost of mediation services is often less than litigation proceedings and often offer flexible schedules accommodating evenings and weekends, as well as regular working hours. There are no spectators to the mediation and discussions are held in confidence to the opposing party or those outside the process. Resulting decisions can be filed in court and enforced like a court order.
What is a Common Law Spouse? Are their rights different than a legally married spouse?
Every relationship looks different but in order to make the transition from casual relationship to common-law spouse, there are certain criteria that must be reached. In order to qualify as a common-law relationship, two people must have lived together in a marriage-like relationship for a minimum of two years. After this period, should the relationship end, both parties have all of the same rights, obligations and responsibilities as though they were a married couple.
Are both married and common-law couples entitled to a 50/50 division of assets?
It is a common misconception that once a relationship is dissolved, every asset must be dissolved right down the middle. Being part of a two income household allows partners to boost their own investment portfolio. Any equity that is grown during the course of the relationship from the date of marriage or the first date of cohabitation, up until the date of separation, are up for division. Regardless of which spouse contributed it, any growth in equity is split between both parties, and this includes pensions, savings, property investments and RRSP contributions.
How are debts handled between common-law spouses after separation?
Just as with assets, debt accrued during the course of a relationship is subject to fair division. Any pre-existing debts held by either spouse upon entering the relationship remain their own. Any debts that were grown or acquired during the course of the relationship, from the date of cohabitation to the date of separation, are subject to a 50/50 split. There are, of course, certain situations that can impact this, such as cohabitation agreements.
Are there exceptions to 50/50 division after separations?
- While a 50/50 division is common, the overall goal of debt and asset division is to reach a fair and equal settlement. If one spouse finds equal division to be unfair, it can be left to the court to decide whether an “unequal” division is more appropriate. Rulings for an unequal division rely on a wide spectrum of factors, ranging from length of relationship, prior agreements, career and financial contributions; or, if one spouse, through their sole effort, increased the value of an asset or caused a loss.
- In the same way that values and assets can be grown by an individual, so can debts and loss. These losses range from giving away an asset, incurring tax liabilities and any other factors that may cause a substantial unfairness. Apart from preserving whatever equity each spouse brought into the relationship, courts consider the future as well. Courts will consider how the income earning capacity of one spouse may be impacted by the circumstances of the relationship when determining spousal support or alimony.
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