Archive for year: 2014

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Can a non-parent gain custody of a child?

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Custody on Friday, October 17, 2014.

Ontario families are diverse, and as such, guardians come in many forms. Parents are not the only people who care for children, and in many cases, non-traditional families may want to add official legal status to their relationships. Fortunately, there are numerous ways to gain custody, which would give a person the ability to make decisions about health care, education and other vital aspects of a minor’s life.

Under the provisions of the Family Law Act, individuals who are not already guardians must submit formal applications to gain such status. These applications include court-mandated affidavits that incorporate criminal background and general records checks. If the children have been under the applicant’s care previously, courts may additionally require information about their living arrangements and other considerations. The court determines how evidence will be received and what kinds of reports are needed to accurately assess the child’s welfare.

Guardianship may also be assumed by appointment upon the death or incapacitation of a previous legal guardian; this status is generally conferred via a will or the Family Law Act Regulation’s Form 2. It is important to note, however, that in such cases, the new guardian will not be given more responsibilities than the previous one had the right to grant.

Although the Family Law Act makes provisions for many forms of guardianship transfer, each situation is unique. The rules one family has to follow may be markedly different from those another is bound by, especially when child custody changes follow potentially hectic events, like divorces, domestic abuse allegations or deaths. Many families choose to obtain case-specific guidance from legal advisers so they can avoid mistakes and pursue a favourable outcome.

Source: The Canadian Bar Association, “How are parental responsibilities and parenting time decided?”, October 16, 2014

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

The benefits of divorce mediation

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

Some British Columbia couples whose marriages are struggling may wish to learn more about the mediation process of divorce. Although many may believe that divorces can only be settled in a courtroom, the reality is that some cases are suitable candidates for mediation, particularly those in which both parties are willing and able to collaborate with one another toward reaching an agreement.

In the mediation process, both individuals in the divorce often decide upon their own interests independently with their own legal counsel and work to negotiate them with the other party. Mediation tends to be much less expensive than going to court can be, and parties involved have the option of splitting the costs between themselves. A mediator typically charges an hourly rate, and meetings are usually between two to six hours in duration.

In a collaborative settlement, both parties agree to resolve their differences outside of court. Agreements reached in this way are indeed considered legally binding and may be enforced by a court should one of the parties involved violate its terms. That being said, it may be possible to amend the agreement after it has been signed if both parties consent to the amendment or if circumstances change sufficiently to justify it.

Some mediators can also serve as lawyers and may directly assist in the drafting of any agreement that is reached. In addition, someone involved in mediation may benefit from a lawyer’s assistance in assembling necessary documentation to substantiate their case or reviewing the feasibility of a proposed settlement. If one of the parties later violates the settlement in some way, it may become necessary to initiate legal action to compel them toward compliance.

Source: The Canadian Bar Association BC Branch, “Mediation and Collaborative Settlement Processes“, October 09, 2014

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

What constitutes a special expense?

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Support on Wednesday, October 1, 2014.

British Columbians who are involved in a divorce with children may be interested to learn about an aspect of child support called ‘special expenses.” Special expenses are large, unexpected expenses, such as extraordinary medical costs or orthodontics, that may come up while caring for a child. Because these are not everyday expenses, parents will need to come up with an agreement about how to pay for special expenses that is separate from the agreement about regular child support payments.

Unless the parents come to their own agreement, tables in the Child Support Guidelines will normally be used to determine the amount of child support a payor will owe to the custodial parent. These amounts, however, do not cover all special expenses a child may need. In addition to the regular child support payment amount, the parents or a judge will need to decide what percentage of special expenses each parent will contribute towards when they arise.

In some cases, parents will decide to split the cost of special expenses evenly. The Child Support Guidelines recommends that parents instead split the cost of these expenses in a way that is proportional to each parent’s income. Although parents likely will not know what special expenses a child will have, it may be important to reach an agreement about special expenses ahead of time.

Parents may find that a prearranged agreement about special expenses is useful to have in the event that a child requires tuition at a school that meets their developmental needs. Speaking with a lawyer may be a good way to determine what type of agreement about special expenses would most benefit the child. Because every child’s special expenses are different, the information in this blog is not meant to be confused with legal advice.

Source: The People’s Law School, “Child Support in BC“, September 29, 2014

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

How can a parenting plan help after divorce?

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

Some residents of British Columbia may have an interest in learning about the creation of parenting plans after separation or divorce. Although it can sometimes be difficult for parents to come to such an agreement after their separation, doing so may be necessary for the well-being of any children whom they may have.

For example, ensuring access to quality health care is often one of the most important considerations for a child’s parents to resolve. It may be necessary to decide how one parent will inform the other in the event of an emergency and which parent will be charged with caring for the child when they are ill. Similarly, parents might need to decide where a child will attend school and which parent will be responsible for attending the related academic functions. Decisions regarding religious instruction and upbringing might also be an area of contention for some parents.

Even in situations where the parents’ personal relationship with one another has been damaged, a parenting plan may remain a necessity. Indeed, such a plan can even simplify and limit parental interaction by clearly stipulating one another’s expectations in given circumstances and clarifying what aspects of a child’s life for which each is responsible. In this way, a parenting plan can further facilitate life after divorce and reduce potential complications.

Although the end of a marriage can bring a sense of freedom, the presence of children can inherently require a degree of continued contact between former spouses, which may not be entirely welcome in cases where the separation was less than amicable. Lawyers could help in the development of a parenting plan that is tailored to the individual circumstances of those involved. A well-crafted parenting plan may further the best interests of the child and help ensure that each parent continues to cultivate their mutual relationships with the child.

Source: Government of Canada Department of Justice, “Parenting Plan Checklist“, September 23, 2014

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

Examining the types of child custody in British Columbia

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Custody on Tuesday, September 16, 2014.

British Columbia parents may be interested in an article discussing the types of child custody available through the court system. Knowledge of these different arrangements may be useful when negotiating a custody agreement with a former spouse.

Under the federal Divorce Act, when a couple who has a child together divorces, they will apply for custody of that child during the divorce process. The term custody refers to the right to spend time with a child and the right to take part in the major decisions in a child’s life. There are three major types of custody. The first is sole custody, which allows only one of the child’s parents to make important parenting decisions. The child generally lives with that parent most of the time as well.

Another type of custody is known as joint custody. Joint custody involves both of the parents in the major decision-making and parenting time to varying degrees. The amount of parenting time does not have to be equal in these arrangements. Decisions about the child’s upbringing, however, generally require the consent of both parents. When each parent spends at least 40 percent of the time responsible for the child, this is known as shared custody. Lastly, split custody is a situation where there is more than one child, and some live with one parent while others live with the second parent.

Decisions regarding child custody and living arrangements are either made through agreement by the parents or by a court. The court seeks to serve the best interests of the child. A lawyer may be able to help throughout the child custody process, either by negotiating an agreement on behalf of one parent or representing them in front of a judge.

Source: Family Law in British Columbia, “Custody“, September 15, 2014

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

Determining child support in British Columbia

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Support on Friday, September 12, 2014.

Child support is the financial support that a parent is obligated to provide to the other parent for a child. Individuals who have a parent-like relationship, such as a stepparent, may be obligated to provide this support whether or not a couple was married or of the same sex. Whether child support is paid and how much is to be paid can be determined by an agreement between parents or pursuant to an order from the court.

If child support is owed, the court will use child support guidelines to determine the amount that the paying parent is responsible for providing. In general, payments are decided based on the income of the parent paying support and how many children are being supported, though certain exceptions, such as the costs of daycare or special medical treatments, may alter the amount of support that someone is obligated to provide.

Once a child support order has been established, it can be modified. There are situations where it may be necessary to change the amount of support provided, either by altering an agreement already in place or through the courts. These modifications are commonly made pursuant to an increase or decrease in a parent’s income or a change in the living situation of the child.

If someone is seeking child support or to have an existing child support order modified, the process can be complex and based on a variety of factors, including the income of the parent obligated to pay support and any special circumstances. A lawyer could assist someone with these legal issues by explaining the guidelines for determining child support and how the court uses the guidelines.

Source: The Canadian Bar Association, “Child Support “, September 11, 2014

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

Learning about division of property

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On behalf of Laughlin & Company Lawyers Mediators posted in Division of Property on Wednesday, September 10, 2014.

British Columbia has certain default provisions in place to help establish how marital assets can be fairly distributed between each spouse in a divorce. For spouses who do not wish to resort to these default rules, a prenuptial or postnuptial agreement may be put in place. In the absence of such an agreement, marital property and debt must be divided according to established rules.

One general rule is that nearly every type of asset is subject to division, including the increased value of assets that were owned before a spouse was married. There are a few exceptions, however, such as inheritances or gifts that were received from a party other than the other spouse. While courts are bound to adhere to default rules in many situations, spouses may be able to reach an alternative agreement that works best for them through the process of mediation or private negotiation. In addition to dividing specific assets, spouses may also consider whether spousal support should be included in their agreement in order to help compensate for the non-financial contributions of one of the spouses.

One of the most important components of the divorce process is evaluating assets that must be divided so that each spouse winds up with about the same value of assets as the other. Certain assets may be more difficult to evaluate, such as businesses. Our firm focuses on other practice areas, such as commercial law and estate planning, so we are able to consider how different financial arrangements may affect clients’ lives in the future.

Dividing property can be a complex process that may require the testimony of experts regarding the value of certain assets. If you would like more information on the legal rules regarding the division of property, please read our page on this topic.

Source: Laughlin & Company, “Division Of Property“, September 04, 2014

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

How property and debt are divided when spouses separate

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On behalf of Laughlin & Company Lawyers Mediators posted in Division of Property on Tuesday, September 2, 2014.

When British Columbia spouses separate, their property and debt is divided according to the Family Law Act. Generally, each spouse receives half of the family property and half of the family debt. Family property includes such things as bank accounts, business interests and pensions. Some property is excluded, although it does include increases in the value of the excluded property that occurred during the relationship.

Excluded property is property that a spouse owned at the beginning of the relationship. Examples include inheritances, gifts and court awards. Excluded property belongs to the spouse who brought the property into the relationship, and it isn’t divided. Debt is handled in a similar way, meaning that family debt is usually split 50-50 upon dissolution of a relationship, but individual debt is not.

A spouse is defined as one of the partners in a marriage or a marriage-like relationship existing for two or more years. When spouses divorce or separate, they have two years to ask a court for a division of property and debt. Although courts usually divide property and debt evenly, they can elect a different methodology that is perceived to be more fair and equitable. Spouses can also create their own property division agreement.

The division of property and debt can become complicated, especially in cases where the value of the assets has grown during the marriage or where one or both spouses own significant business interests. While courts usually divide property and debt equally, a couple is free to devise their own plan or to develop one during mediation. A spouse who needs assistance with dividing property and debt may want to use the services of a lawyer who has experience in family law.

Source: The Canadian Bar Association, British Columbia Branch, “Dividing Property and Debts “, August 28, 2014

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

BC mother not required to relocate after appeal

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Custody on Wednesday, August 20, 2014.

After a British Columbia Supreme Court ruled that an Okanagan mother would have custody of her child but be required to move to Chetwynd, she has now had the ruling reversed by the British Columbia Court of Appeal. She will no longer be required to change her living arrangements in order for the girl’s father, who lives in Chetwynd, to have access to their daughter.

In the previous case, the British Columbia Supreme Court had decided that the father would have easier access to the child if the woman returned to Chetwynd, where she lived during the pair’s brief marriage. The judge also noted that both parents would have higher earnings if they both worked there. The mother had an income of $69,000 as a math teacher when she lived in Chetwynd; however, her income decreased sharply to $40,000 when she moved to the Okanagan. The father works as a mine electrician and earns $95,000 a year.

The mother argued that the judge should not be able to order her to relocate after awarding her custody. The Court of Appeal agreed with her argument, saying that even though a court can prevent a parent from relocating with a child, it cannot require that an individual be “indentured” to a certain community. Additionally, the appellate court ruled that the father can still have parenting time with his two-year-old daughter for five consecutive nights because he has a 14-day rest period from work each month, but he will be responsible for paying for his travel to see his daughter and will not be allowed to remove her from the area to Chetwynd.

This case shows that even after a court ruling determining custody and child access, there may be hope for appealing the ruling to potentially obtain a less limiting result. A family law lawyer may help a parent in a situation like this to prepare an appeal and demonstrate that relocation could cause certain hardships for one or both parents.

Source: Times Colonist, “B.C. Court of Appeal overturns divorce ruling that forced mother to move “, Kim Pemberton, August 14, 2014

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

Child support in British Columbia: How is it determined?

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On behalf of Laughlin & Company Lawyers Mediators posted in Child Support on Friday, August 15, 2014.

When couples with children get a divorce, two important matters that they often have to settle are who will pay child support and what the monthly payment amount will be. Child support payments are meant to ensure that both parents of a child help cover the cost of the child’s financial needs, including food, residence, health care and education.

In British Columbia, the amount of child support that the payor provides each month is based on the Federal Child Support Guidelines and federal tables. The tables make it easy for divorcing parents to see how much child support payments are likely to be based on how many children they have and their annual gross income.

For example, a paying parent with one child and an annual gross income of $50,000 could pay $458 per month. If the annual gross income is more than $50,000, the excess is multiplied by 0.96 percent and added to the $458. In the case of an annual gross income of $50,500, for instance, the payor may owe an additional $4.80 for a total monthly payment of $462.80.

However, judges may consider lowering child support orders in certain circumstances, such as when the payor is a step-parent, when the child lives with the paying parent 40 percent of the time, if the annual gross income of one parent is more than $150,000, or if the child is 19 or older and not a full-time student.

Another consideration that could change the amount is proof from the payor that the suggested child support payment would cause undue hardship. Judges could also consider a different child support order if one parent claims extraordinary or special expenses, such as private school, post-secondary education, tutoring, child care or health care.

The idea behind child support laws is to ensure that both parents of a child share in financially caring for their offspring as they would if they lived together. It is a child’s right to receive child support, and a court is unlikely to support an agreement that one parent does not have to pay.

Source: Family Law in British Columbia, “Child support“, August 14, 2014

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