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Frequently Asked Questions

  1. What is a separation agreement and should I get one?
  2. Am I responsible for half his debt if we separate?
  3. Can I draft my own cohabitation, marriage, or separation agreement?
  4. How much spousal support can I get from my ex?
  5. How do I know how much child support I have to pay?
  6. How do I legally separate from my ex?
  7. Does the date I separated from my ex really matter?
  8. What does the court consider when making decisions about children in a separation?
  9. Can my ex and I go to mediation instead of court to deal with our separation?
  10. Are my spouse and I “common-law”?
  11. My “common-law” spouse and I each want to keep our assets if we break up, can we do that?
  12. Are my monthly child and spousal support payments tax deductible?
  13. Is there any way I can get legal advice from a lawyer without paying for a full retainer?
  14. Can I get spousal support from my ex?
  15. My parents gave me $25,000 to help with the purchase of my first house. I am buying it with my girlfriend and we are both going to be on title to the home. If we break up, will I get the $25,000 back because my parents gave it to me?
  16. My boyfriend and I lived together for over two years, had two kids, then broke up and now I want to get sole custody and guardianship. What’s the difference between custody and guardianship?
  17. I plan to loan my daughter and her husband money to pay down debt, how can I be sure I will be repaid if they get divorced?
  18. I heard you can’t get divorced until you have been separated for one year, does that mean I can’t get child support until then?
  19. If my income goes up and my ex doesn’t know, do I need to pay more child support?
  20. Do we have to go to court to get divorced?
  21. Can I just stop paying child support when my child graduates from high school?

What is a separation agreement and should I get one?

A separation agreement is a contract that settles some or all issues that may arise when a relationship ends, from property division to spousal support. A separation agreement cannot deal with divorce; that must be dealt with in the Supreme Court. Separation agreements can be less expensive than court but you and your ex-spouse must be cooperative enough to negotiate the terms of the agreement. In a separation agreement, you can make whatever arrangements you want, as long as both of you agree to those arrangements and they’re reasonably fair. For example, you can agree to divide unequally the things you’re supposed to divide equally under the Family Law Act, like assets and debt.

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Am I responsible for half his debt if we separate?

Under the Family Law Act, married and unmarried spouses (who have lived together for at least two years) are equally responsible for all family debt incurred during the relationship by either or both spouses, regardless of your use or contribution to that debt. You could also be equally responsible for debt incurred after separation if the debt was used to maintain family property. The court may divide debt unequally if an equal division would be “significantly unfair”.

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Can I draft my own cohabitation, marriage, or separation agreement?

You can find many do-it-yourself kits online and at local retailers. These products might be fine in some situations, but could leave you vulnerable if they are not drafted with a good knowledge of family law. It may be well worth spending the money now to have a lawyer draft an agreement correctly, rather than spending much more on legal fees down the road if the agreement is flawed. In any event, always seek independent legal advice from a lawyer before signing an agreement.

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How much spousal support can I get from my ex?

Lawyers and courts often refer to the Spousal Support Advisory Guidelines to determine the how much support should be paid and the length of time it should be paid for. You can calculate a rough estimate at www.mysupportcalculator.ca, but you should seek legal advice about your particular situation.

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How do I know how much child support I have to pay?

Basic child support can be calculated at mysupportcalculator.ca with three simple pieces of information: your gross annual income (line 150 from your most recent tax return), how many children you have, and your province of residence. However, many things can impact the amount of child support you have to pay and we always recommend consulting with a lawyer.

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How do I legally separate from my ex?

Separation takes place when you and/or your ex decide the relationship is over. There is no need to get a Judge to approve or validate your separation, but it is ideal to agree on and write down the date of separation when it happens. Your date of separation can be very important when it comes to dividing assets and debts and asking for spousal support.

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Does the date I separated from my ex really matter?

Proving the date of separation can be very important when it comes to dividing assets and debts, asking for spousal support, and getting a divorce. Moving out of the family home, writing a letter, or sending an email can be proof as to the date of separation.

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What does the court consider when making decisions about children in a separation?

The Family Law Act states that when making orders regarding guardianship, parenting arrangements or contact with a child, the court’s only consideration is what is in the best interest of the child.  The Family Law Act then provides some factors that the court may consider in determining what is in the best interest of the child.  The courts may consider the child’s health and well-being, the history of child care, the nature and strength of the child’s relationships, the child’s need for stability, and the child’s views.  Finally, the court is to consider any family violence, other relevant court proceedings, and the appropriateness of an arrangement that would require the child’s guardians to cooperate.

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Can my ex and I go to mediation instead of court to deal with our separation?

Family law matters can be resolved many different ways and you may be able to avoid a court room altogether. Mediation is a voluntary process where a neutral person, called a mediator, listens to you and your ex and helps the two of you reach a solution. While the mediator helps the two of you to come to an agreement, they don’t decide for you, or force you to accept a solution. Arbitration is more formal than mediation, but less formal than court. A neutral third person, called an arbitrator, listens to evidence from you and your ex and then makes a decision. The arbitrator’s decision is binding. Usually, you cannot go to court later if you’re unhappy with the arbitration decision. Mediation-Arbitration combines the benefits of mediation and arbitration by first trying to help the parties of a dispute work out an agreement through mediation; should that fail, the mediator can assume the role of an arbitrator and render a binding decision. While you must pay for this service, it is usually much more efficient and cost-effective that going to court.

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Are my spouse and I “common-law”?

If you and your spouse have lived together in a marriage-like relationship for a continuous period of at least two years, you are considered spouses under the Family Law Act. This means that you are presumed to keep the property/debt you bring into the relationship and equally share anything acquired during the relationship and may be liable for spousal support. You may also be common law spouses for things like spousal support (but not property), even if you don’t live together for the 2 years, but have a child together.

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My “common-law” spouse and I each want to keep our assets if we break up, can we do that?

The Family Law Act came into effect in March 2013 and redefined how “common-law” spouses divide assets and debt if they separate. “Common-law” spouses, a couple who has lived together for at least two years, are now treated the same as married spouses. The basic presumption is that all assets and debts accumulated during the relationship are divided equally upon separation. If this doesn’t reflect you and your spouse’s wishes, consider entering into a cohabitation or prenuptial agreement.

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Are my monthly child and spousal support payments tax deductible?

Payments of monthly spousal support can be tax deductible if correctly drafted in your order or agreement. Receipt of monthly spousal support is considered taxable income.  However, lump sum spousal support is tax neutral, meaning that it is not tax deductible for the payor or taxable income for the recipient.  Similarly, child support is neither taxable income nor deductible.

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Is there any way I can get legal advice from a lawyer without paying for a full retainer?

While full representation is usually best, there are other options.  “Unbundled” is a term used to describe legal services that are broken down into discrete tasks as a way of lowering the cost of litigation and improving access to justice. Lawyers are able to provide assistance with one, but not necessarily all, aspects of a legal matter, and the client represents themselves for other parts. This could mean that you hire a lawyer to draft documents for you, do legal research for you, or help you plan your trial strategy.

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Can I get spousal support from my ex?

Under the Family Law Act, if you and your ex lived together for two years or more, or lived together for less than two years but have a child together, you can apply to the court for spousal support but must do so within two years from the date of separation. If you and your ex were married, you can apply to the court under the Family Law Act for spousal support but must do so within two years from the date of your divorce.

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My parents gave me $25,000 to help with the purchase of my first house. I am buying it with my girlfriend and we are both going to be on title to the home. If we break up, will I get the $25,000 back because my parents gave it to me?

The Family Law Act (FLA) in British Columbia states that unmarried spouses who have lived together for at least two years are both entitled to an equal division of family property after separation. However, the FLA also states that gifts are excluded property and not subject to equal division. Unfortunately, it is not that simple as some courts have held that when excluded property is used to purchase a home subsequently registered in the names of both spouses, the exclusion is lost. To be safe, always obtain a cohabitation (or prenuptial) agreement that outlines your intentions regarding the gift in the event that you and your partner separate.

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My boyfriend and I lived together for over two years, had two kids, then broke up and now I want to get sole custody and guardianship. What’s the difference between custody and guardianship?

If you and your spouse were never married, you will be applying for a court order under the provincial Family Law Act (FLA). Under the FLA there is no such thing as custody. That term is now only reserved for married spouses who apply under the Divorce Act in Supreme Court. Under the FLA you and your boyfriend, because you lived together with the children, are both presumed to be guardians. As the guardians of the children, are presumed to share all parental responsibilities for your children unless you agree or the court otherwise orders. Section 41 of the FLA outlines a list of 12 broad parental responsibilities such as, deciding where the children will live, who the children will associate with, what extracurricular activities they will participate in, and their religious and cultural upbringing. You and your spouse can share all of the parental responsibilities in consultation with one another, divide them up between you or one of you can have them all. If you cannot agree on how the parental responsibilities will be shared, you can apply to the court and have a Judge decide.

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I plan to loan my daughter and her husband money to pay down debt, how can I be sure I will be repaid if they get divorced?

If you don’t have a legally binding contract, there is a risk that a family court will not recognize this as a family debt, but instead consider it a gift to both your daughter and her then-husband. You would then be forced to sue your daughter and her ex-husband in civil court and obtain a judgement against them. To be on the safe side, it is best to have a legally binding written agreement prepared by a lawyer prior to loaning the money. Contact us at 250-591-1055 to book a one-hour consultation and to learn more about what the courts consider “family property.”

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I heard you can’t get divorced until you have been separated for one year, does that mean I can’t get child support until then?

Just because you wait one year to apply for a divorce, doesn’t mean you cannot obtain interim child support before that time. Child support is the right of the child and parents have an obligation to pay the amount set out in the Child Support Guidelines from the date of separation. If your ex is not making voluntary payments, you can apply to either provincial or supreme court for a child support order. Contact us at 250-591-1055 to book a one-hour consultation and learn how.

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If my income goes up and my ex doesn’t know, do I need to pay more child support?

Courts have found that there is an ongoing duty on those paying child support to disclose their income, whether asked for this information by the other parent or not. As such, if your income goes up and you do not disclose this fact to your ex-spouse and he/she later finds out, he/she could apply to the court for a retroactive increase of child support. More recently courts have been willing to increase the support dating back to when your income went up.  Contact us at 250-591-1055 to book a one-hour consultation and find out more.

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Do we have to go to court to get divorced?

No. You can file the necessary documents with the court registry to obtain a divorce as long as it is not contested by either party; you need not appear before a Judge. Often it’s not just the divorce that needs to be dealt with, but also issues like guardianship and parenting time with the child(ren), child support, spousal support, and asset and debt division. So long as you and your ex can come to an agreement on these issues, you can even get a divorce and a court order dealing with all the other issues, without ever having to appear before a Judge in person. Contact us at 250-591-1055 to book a one-hour consultation.

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Can I just stop paying child support when my child graduates from high school?

In most situations, child support is payable until your child turns nineteen and may continue to be payable once they turn nineteen if they are unable to withdraw from the care of their parent(s) due to illness, disability, or other reasons (such as post-secondary studies). Caution, unless your court order or agreement specifies that child support ends upon your child turning nineteen, you should apply to have the order cancelled or amend your agreement.

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