Archive for year: 2014

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Dividing collective property in a divorce

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On behalf of Laughlin & Company Lawyers Mediators posted in Division of Property on Monday, December 29, 2014.

British Columbia couples considering divorce might want to prepare for the fact that a substantial portion of the assets they own might fall under the legal category of family property, which is subject to division by law. Assets obtained independently and prior to the couple’s relationship are one of the few types of possessions excluded from the family property classification.

Assets classified as family property when couples separate include those that were independently obtained by one spouse yet served the couple’s beneficial interest. Property that is purchased after the separation may also be classified as family property if the means to obtain it came from family property resources. Many financial assets are destined for the same classification, including shares in a company, business interests and balances from both bank and retirement accounts. In the same way, debts acquired by the couple is deemed collective in a divorce and therefore subject to division between the two splitting parties.

However, family law in British Columbia does allow for ex-spouses to personally keep as undivided property any inheritances bequeathed to them but not their partner . The same holds true for compensation or other damages awarded to one of the spouses on account of a civil lawsuit in most cases.

That, generally, is how family courts begin to decide the manner in which property will be split. Yet, couples and their lawyers may negotiate an agreement regarding property division on their own terms and submit it to the court for ratification. Success often hinges on the representation and professional wherewithal of the lawyers retained by individual spouses, especially if the dissolution of the marriage contains an evident level of hostility, resentment or vindictiveness.

Source: Queens Printer, BC, “Family property“, December 24, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

A look at relocation issues for parents after a divorce

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Custody on Thursday, December 18, 2014.

British Columbia residents may be interested in some of the considerations that courts make when deciding whether one parent can relocate with a child, away from the other parent. Competing judicial interests make these relocation decisions difficult to predict.

When parents divorce, there are often issues with both parents trying to maintain a relationship with children after the split. If the child lives with one parent, visitation rights are important in keeping that close parenting relationship with the non-custodial parent. However, if the custodial parent wishes to relocate, this can require the approval of the courts. Though courts attempt to decide these issues based on what is in the best interests of the child, sometimes predicting the outcome can be difficult.

This is because there are so many variables when it comes to relocation decision making. Judges and jurisdictions each have their own views on how to resolve relocation issues, and the particular facts of each case can be a decisive factor. One seminal Supreme Court decision, however, holds some guidance. The court used seven factors in deciding a relocation case. Some of these factors include the existing custody and access agreement between the parents and child, the child’s views on the relocation and the importance of keeping the child together with the non-custodial parent. The judicial system must balance somewhere between the need for a child to keep a relationship with both parents and the ability for one parent to move freely to seek a better life.

Understanding the law regarding living arrangements and other child custody issues can be difficult without the help of a family lawyer. The lawyer may be able to counsel a parent on the best course of action with regard to relocation, visitation rights and parenting time.

Source: The Canadian Bar Association, “Breaking away”, Pablo Fuchs, December 16, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

Benefits for grandparents

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Custody on Monday, December 15, 2014.

British Columbia grandparents who have assumed custody of their grandchildren may be unaware of the possible governmental help available to them to help. In fact, there are several benefits intended to help provide for the children’s needs for which grandparents may be entitled.

Even in situations where the grandparents are the children’s caregivers but do not have legal custody, they may qualify to access benefits through the Extended Family Program. Those with legal custody of children may have several different benefits available to them, including benefits through the Canada Pension Plan for children under 25, child disability benefits, universal Child Care benefits for children younger than six, child care subsidies and employment insurance family supplements.

Other assorted benefits are available to grandparents who adopt their grandchildren or for those who took in their grandchildren through the government’s foster care ministry. These benefits may be vital for grandparents who no longer work full time or who no longer possess the same earning potential that they did when they raised their own children. In addition to these various benefits programs, grandparents who care for their grandchildren may be eligible for certain tax deductions and credits.

British Columbia provides certain benefits to grandparents and other relatives in whose homes children are living. The living arrangements of the child in the relative’s home determine the types of benefits for which the caregiver is eligible. For more information regarding available benefits, grandparents who have their grandchildren living with them may wish to discuss the specifics of their situation with a lawyer who accepts family law cases. The lawyer may help identify available benefits and assist the grandparents or other relatives with preparing and submitting the program applications.

Source: Family Law, “Benefits for grandparents and other relatives raising children“, December 10, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

Developing a plan for co-parenting and child support

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Support on Thursday, December 4, 2014.

When a couple’s relationship ends, both parents will need to decide a number of issues including co-parenting, child custody and child support arrangements. Parents in British Columbia must adhere to the child support guidelines set forth by federal law. In most cases, the amount of child support is calculated based on the number of children and the parents’ income.

After the divorce is finalized, child support and child-care related issues may continue to evolve. For example, parents’ financial circumstances may change due to a reduction in hours or a layoff. Such changes may result in the need to have child support payments modified.

If parents experience ongoing issues, including changes in parents’ visitation schedules, a parenting coordinator may be able to provide assistance. Parenting coordinators can help reduce conflicts between parents and minimize harm to children by providing a buffer between parents. In addition, a parenting coordinator can facilitate communication between parents and assist with finding workable solutions to co-parenting challenges.

Communication and planning are key to developing a fair and manageable divorce agreement, co-parenting plan and child support arrangement. Lawyers, along with mediators and parenting coordinators, can help with the process of negotiating a divorce agreement that considers the needs of all of the people involved. If both parties can come to an agreement, then the judge is likely to support the agreement and will grant the divorce. On the other hand, if the parents cannot agree, the judge may create an agreement based on standard formulas.

It can help to learn about how child support is calculated and how child custody is decided. To learn more about the subjects of family law, divorce, child support, child custody and co-parenting, please visit our webpage.

Source: Laughlin & Company , “Child Support“, December 04, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

The rights of a stepparent in British Columbia

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Custody on Wednesday, November 26, 2014.

A stepparent in British Columbia who separates from that child’s legal parent may still maintain a relationship with that child. In some cases, each party will agree to visitation and custody arrangements assuming that such visitation or custody is in the best interest of the child. If the two parties cannot agree on their own, it may be up to a judge to determine if a step-parent should have visitation or custody rights.

A stepparent may be allowed to become the legal guardian of the child. A judge will have to determine whether or not it would be in the child’s best interest. Furthermore, guardianship cannot be granted outside of a court order even if it is part of a written agreement.

Depending on the nature of the relationship between the stepparent and the child, the stepparent may be responsible for paying child support. This may be true if the stepparent was married to the child’s parent for two years and also lived with the child. Additionally, the stepparent would need to have supported the child financially for one year. An application for child support would need to filed no more than a year after the separation took place. If these two conditions are not met, a stepparent generally does not owe child support for stepchildren.

Parents who seek child support or cannot agree on other parenting arrangements may wish to speak with a family lawyer. A lawyer may be able to help establish that he or she is entitled to support or custody. This may be done by proving that providing increased support or parenting rights is in the best interest of the child, which trumps the interest of any other party involved.

Source: Family Law in British Columbia, “Step-parents’ rights and responsibilities“, November 26, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

Property Division in British Columbia

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On behalf of Laughlin & Company Lawyers Mediators posted in Division of Property on Thursday, November 20, 2014.

In a divorce case or a case in which the parties are unmarried but have lived together for two or more years, people in British Columbia can expect to go through a property division. Under the rules, property is categorized as family property or excluded property.

Family property is subject to division under the law. Unless the parties have an agreement otherwise, all family property will be divided equally between them. Family property includes the shared home, bank accounts, RRSPs, investments, insurance policies, pensions, business interests and any increased value of excluded property that occurred during the relationship. Courts will sometimes divide family property unequally between the parties if the court determines that doing otherwise would be significantly unfair. Practically speaking, however, courts divide family property equally in most cases.

Excluded property includes the property one person owned prior to the start of the relationship. It also includes any gifts or inheritances given to one person but not to the other during the relationship. Finally, excluded property also includes certain types of damage awards, trust property and insurance proceeds.

When people are separating or divorcing, they may wish to try to come to an agreement with their former spouse or unmarried partner regarding the division of their property. Property division can be difficult to figure out, however. It is often difficult for people to be able to reach an agreement regarding a property division. In those cases, people may benefit by speaking with a lawyer who practices in the area of divorce and family law. A lawyer may be able to help locate hidden assets, devise a proposed property division agreement and advocate for his or her client’s rights in court at contested hearings.

Source: Justice BC, “What happens to family property when spouses separate?“, November 20, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

Is an uncontested divorce right for me?

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On behalf of Laughlin & Company Lawyers Mediators posted in Divorce Mediation on Thursday, November 13, 2014.

Some British Columbia residents might not be aware that an uncontested divorce is more easily resolved than a contested divorce. The reason being that the spouses in an uncontested divorce essentially agree to the terms of a settlement without the intervention of a court.

Also called an undefended divorce, an uncontested divorce requires that both spouses are, for the most part, in agreement about the major matters that need to be resolved when a marriage is dissolved. These include asset division, spousal support and child support.

In an uncontested divorce, spouses must agree on nearly every aspect of the divorce as well as on the divorce itself, meaning that one partner cannot hold reservations about going through with the dissolution. Yet, an uncontested divorce is not necessarily synonymous with an easy divorce. For, the divorce-related matters still require settling.

For instance, divorcing couples must decide on how they will divide their debts between themselves. Parenting agreements must also be made, especially with regard to custody, visitation and financial support.

All divorces, including the uncontested type, demand a significant degree of planning. For example, there are residency requirements that must be met. To file for divorce in British Columbia, it is required that at least one spouse has lived in the area for a minimum of one year. If there are disputes about assets, liabilities, child care or any other significant issue, an uncontested divorce may not be possible.

Regardless of how simple a divorce may appear to be, there is no guarantee that it will be easy. For this reason, spouses considering a divorce often rely on the counsel and representation of a divorce lawyer, who may help individual spouses obtain fair and even favorable settlements.

Source: Family Law in British Columbia, “How to do your own undefended (uncontested) divorce“, November 11, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

How are pension plans divided in a divorce?

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On behalf of Laughlin & Company Lawyers Mediators posted in Division of Property on Thursday, November 6, 2014.

In a British Columbia divorce, the value of a pension is split in a specific fashion. For local defined contribution plans, a spouse may have his or her share of the pension withdrawn into a separate account. He or she may also decide to keep his or her share of the pension inside of the plan under the same terms and conditions that the member must abide by.

For defined benefit plans, a separate pension plan may be created for the other spouse who is entitled to a share of pension benefits. A commuted portion of the pension may also be transferred to the credit of a limited member. In the event that a member decides to terminate participation in a defined benefit plan, the administrator of the plan may agree to continue to administer any separate pension created.

In a hybrid plan, it may be possible for a spouse to take benefits in any manner available to the member. In some cases, it may be possible for the spouse to choose how to treat the account assuming that the administrator consents to the spouse doing so. These scenarios assume that the pension has not yet commenced. If it has, a spouse may be entitled to a proportionate share of benefits paid out until the plan is terminated or the individual dies, whichever comes first.

Among other property, the value of assets of a pension is eligible for division. It may be worthwhile to hire a lawyer to determine how to divide any pension plan that exists according to provincial law. In addition, a lawyer can help an individual get their fair share of any other assets during property division. None of the information in this article should be taken as specific legal advice.

Source: CanLII, “Family Law Act, SBC 2011, c 25, Part 6 — Pension Division“, November 01, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

Why would a plaintiff need a mediator?

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On behalf of Laughlin & Company Lawyers Mediators posted in Divorce Mediation on Monday, November 3, 2014.

Mediation has been used in British Columbia to settle legal disputes for over 20 years. When a judge is called upon to decide these matters, both parties must live with the decision. Mediation allows all parties to remain involved until a consensus is reached. When mediation is entered, an independent third party is appointed to help the disputing parties negotiate. However, unlike a judge, this mediator has no authority to decide matters.

Mediation may be a worthwhile approach for a couple going through a divorce. Emotions can run high during negotiations over matters such as property division, and the detached viewpoint of an independent mediator could allow spouses to find common ground where none seemed possible.

A divorcing couple may also consider mediation when a dispute arises over child custody or visitation. The combative atmosphere of a courtroom could extinguish any remaining chances of an agreement being reached, and a protracted custody battle may cause the child long-lasting emotional damage. While court proceedings generally concentrate only on the legal rights of the parties involved, mediation encourages a broader discussion of needs and interests. Resolving custody and visitation disputes through mediation may also allow parents to have an amicable relationship once these matters are settled, which could be of great value to the child.

Going through a divorce is rarely easy, and the emotional pressure sometimes leads to questionable decisions being made. A lawyer with experience of divorce cases will likely understand the strain that spouses are feeling, and they may be able to suggest strategies, such as mediation, that allow the atmosphere to become less contentious and more productive. However, if this approach does not lead to an agreement, a lawyer could advocate vigorously in court on behalf of their client.

Source: British Columbia, “Family Mediation“, October 30, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370

How can child support be enforced in British Columbia?

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Support on Friday, October 24, 2014.

Many residents of British Columbia who rely on child and spousal support use the services provided by the Family Maintenance Enforcement Program. The British Columbia Ministry of Justice established the program in 1989 for the purpose of enforcing and monitoring maintenance agreements and orders pertaining to spousal and child support payments.

The program enforces child support payments in the way similar to a third party. The program’s personnel takes action on behalf of enrolled families by overseeing child and spousal payments, making sure that they are complete and made in a timely manner. Whenever a payor misses a payment, the program’s personnel will take actions to encourage the individual to submit the payment voluntarily. Personnel will even offer the payor support in setting up an arrangement to catch up with outstanding payments. In the event the payor is not cooperative, the program’s personnel will take further steps as outlined in the provincial and federal laws to use enforcement measures, such as a wage garnishment and suspending a payor’s driver’s licence.

Moreover, payors who are behind in their payments will be charged interest that is added to the overdue amount owed to the recipient. In the instance the payor is late in making two payments or completely skips at least two payments, a default fee is added to the payor’s balance. This fee, which is in equivalent to a 30-day payment and cannot exceed $400.00, is paid to the BC government instead of the recipient.

Many British Columbia residents who are experiencing trouble obtaining spousal or child support payments retain the services of a local lawyer to help settle the matter. Since the legal aspect surrounding maintenance orders can be complex, a lawyer may be able to assist a person in determining the amount of the support that they may be eligible to receive.

Source: British Columbia Family Maintenance Enforcement Program, “What we do / How we do it“, October 23, 2014

Laughlin & Company Lawyers Mediators
2755 Lougheed Hwy #710, Port Coquitlam, BC V3B 5Y9
(604) 945-4370