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‍In the recent decision of Kennedy v. Smith, 2002 BCSC 1622 the court addressed this question. In this case, one party (Ms. Kennedy) claimed that she was in a spousal relationship for 20 years. The other party (Mr. Smith) denied that the parties...

In a recent decision, the BC Court of Appeal has ordered the division of the decrease in equity of excluded property between the separating spouses. This decision is interesting as it appears to be a departure from the previous caselaw...

How does the Court receive a child's evidence in a family law case? Generally, the Court will prefer to resort to s.202 (which relates to receiving the Child's hearsay evidence) or s.211 (which relates to appointing a qualified person to interview...

In a criminal case, the accused person has the benefit of the presumption of innocence. Moreover, the accused is not required to give advance notice to the Crown about whether they wish to give defence evidence. If an accused does testify, ...

The success of an interim spousal support application can be critical to determining the trajectory and ultimate outcome of the case. If the recipient is successful, then it can take the alleviate financial pressure. In addition, the success...

This blog post will discuss the method of valuing a ranch. I will refer to the case of Jans v Jans (Estate), 2016 SKQB 275 (CanLII) to illustrate the principles. This case was an estate law case with the crux of the dispute being who would inherit...

Valuing Family Property in Family Law Cases‍How does the court value companies in family law cases? In most cases, it is the value of the shares of the companies that the spouse(s) own which may be subject to division of property...

‍This issue arises when the parties have multiple children, and the parenting plan/parenting schedule differ for some or all of the children. For example, a "hybrid" scenario would present itself if the parties have 3 children, but the parties...

There are circumstances when it may be inappropriate to simply use income from the previous taxation year. These circumstances commonly arise when (1) a party's income tends to fluctuate from year to year; or (2) when a party has the ability to...

A payor of child support may make an application to the court for a finding of "undue hardship". If the court makes the positive finding, then the court may order a child support amount that is below what the Federal Child Support Tables indicate...

The court will first assess whether a simple "set-off" is appropriate. The "set-off" calculation is the calculation that is applicable in the "split" custody scenario. In many cases, the "set-off" amount will be appropriate unless one party brings...

Split custody refers to a parenting plan or a parenting schedule where each guardian has the majority of parenting time with at least one child. This type of arrangement would impact on the amount of child support payable...

In this blog post, I will discuss the payment of "basic" child support in a "primary" care scenario. ‍"Basic" child support refers the payment of child support excluding any amounts that are considered Section 7 Special or Extraordinary Expenses...

On April 28, 2016, the British Columbia Court of Appeal provided guidance as how to treat "excluded" property that is gifted between spouses. To frame the question in practical terms: If spouse #1, who owns "excluded" property, gifts that property to the spouse #2, can spouse #1 still claim the exclusion? With the release of the decision by the Court of Appeal in the case of V.J.F. v. SK.W., 2016 BCCA 186, it appears that the answer is "no". The result is that by way of the gifting, the property that is subject to the gifting loses its excluded character and becomes "family property". The court may still then assess whether unequal division of family property would be appropriate in the circumstances.

How are oral agreements considered for Division of Property purposes? This blog post will consider the role of oral agreements pertaining to division of property only. Oral agreements pertaining to spousal support, parenting arrangements, or child support may me addressed in further blog posts. This question was considered in the case of Thomson v. Young, 2014 BCSC 799 (CanLii).

The short answer appears to be "no". If the spouses were married, then either spouse may apply for spousal support under the Divorce Act. It appears that even if a previous order or agreement provides that spousal support is "dismissed" or providesthat spousal support is payable at $0.00 per month, a spouse may still apply for an order for spousal support. However, the applying spouse must then prove to the court that a "material change of circumstances" or "significant change" now exists since the making of the original order or agreement. The case of Sandy v. Sandy, 2018 BCCA 182 provides guidance. In this case, there was a previous agreement for lump-sum spousal support agreed to in February of 2008 which provided the recipient spouse with $411,000 in support. The recipient spouse then applied for another order spousal support in 2013. At trial, the recipient was successful. The payor spouse then appealed. In the course of the judgment, the appellate court confirmed that the jurisdiction of the court to order spousal support acting under the Divorce Act cannot be ousted. However, if there was a previous order or agreement on the issue of spousal support, then the applying spouse must prove that there was a "material change of circumstance" since the making of the initial order or agreement. In the facts of this case, the appellate court found that the applying spouse did not meet the burden of proving a "material change of circumstances" and set aside the fresh spousal support order that was previously made at the trial in 2013...

What happens if the character of "excluded" property has changed? For example, what happens if sale proceeds from a sale of a house that a spouse owned prior to the start of the spousal relationship are put towards the purchase of a new house purchased during the relationship that would otherwise be considered family property? This is where the concept of "tracing" is applicable.

Primer on the issue of bankruptcy in a family law case. DIscussion of "Triggering date"; family relations act; family law act; bankruptcy and insolvency act; trustee in vankruptcy; financial restraining orders.

The court considered the question of reapportioning the increase in value of a company in the case of Kuhlberg v. Hall, 2015 BCSC 2230 (CanLII).

In the case of Shih v. Shih, 2015 BCSC 2108, the Court opts to follow the approach as set out in Remmem and P.G. and declines to follow the case of Wells and V.J.F.

Section 85 (1) of the Family Law Act provides what is "excluded" family property. Section 85 (2) of the Family Law Act provides that "A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property." The case of Shih v. Shih, 2015 BCSC 2108 (CanLII) provides guidance as to the type of evidence one must provide to the court in order to prove an exclusion.

The method in which the court treats corporate interests / business interests in family law is complex. Generally speaking, a corporation is treated as its own separate entity and has its own legal identity. This means, practically speaking, the corporation is its own person.

Under s. 86 of the Family Law Act, debts existing at the date of separation are considered "family debt" and are to be divided between the spouses. All debts that were incurred by one spouse after the date of separation are not considered "family debt" and are not to be divided between the spouses unless the debt was incurred for the purpose of maintaining "family property".

The standard of proof in civil cases is the "balance of probabilities". Conceptually, this means that if you can convince the court that the alleged event occurred with a 51% probability, then you should be able to succeed.

When the government intervenes in order to protect a child, the government acts under the authority of the Director of Child, Family and Community Service Act (the "Director").

The term "custody" is not defined in the Divorce Act. Rather, the term is defined in the case law.

Appearing in the January 2015 edition of "The Advocate" is the article by Susan Boyd and Catherine Whitehead, "Spousal Support Under British Columbia's new Family Law Act: A Preliminary Analysis". The authors state that there have been at least 30 decisions dealing with the issue of Spousal Support under the Family Law Act. There have not been any appellate decisions as of yet. The authors review 11 of these decisions, which in their view, are representative of the case law to date and because the cases extensively grapple with the the Spousal Support provisions in the new legislation. The authors come to the following conclusions: ...

Q: Am I able to move somewhere else with my child? Do I have to inform the court of my intention?

Q: Is there such thing as a "legal separation"?

In any separation, the court is generally most concerned about preventing Family Violence and ensuring that the children's well being is protected. "Family Violence" is a defined term in the Family Law Act.

The division of Family Property in British Columbia is governed by the Family Law Act. The framework is the same for common-law couples (i.e., have lived together in a marriage-like relationship at least 2 years) and married couples.

The Divorce Act deals with theses issues using the terms "custody" and "access". However, the term "guardianship" is used on the case law (i.e., the cases interpreting the Divorce Act). The Family Law Act deals with these issues using the terms "guardianship", "parenting time", "parenting responsibilities", "parenting arrangements", and "contact". It is important to note that the terms under the Divorce Act do not mean the same thing as the terms under the Family Law Act.

The truth is that there is little that is "basic" about Spousal Support (alimony). This post attempts to explain the basic mechanics of how to determine whether you should make claim for spousal support. Spousal support is made up of the following components: entitlement; amount; and duration.

Determining the amount of child support payable is accomplished by following various steps which look at eligibility of support, payor determination, gross annual income calculations, relationship between income and number of children.