Can I Get Divorced If Separated Less Than One Year?
Under the Divorce Act, a divorce can only be granted based on one of the following grounds:
1. you and your spouse have been separated for more than one year;
2. you or your spouse committed adultery;
3. you or your spouse committed physical or mental cruelty.
The majority of divorces in BC are granted on the basis that you and your spouse have been separated for more than one year (the "date of separation").
Generally, the date of separation is the date you and your spouse decided to end the relationship. Sometimes this date is not agreed to, and this may have consequences on such things as child support, spousal support, and property division. Please be aware that it may be possible to be separated while living in the same residence, provided that the martial aspects of the relationship have ended.
Although it is possible to get divorced faster based on either adultery or physical or mental cruelty, you must be able to prove the adultery or cruelty. Depending on your case, it may save you money and stress if you instead wait for the one year separation period to expire.
Contact us to see how we can help. First consultations are free.
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Do I Need A Separation Agreement?
What is a Legal Separation?
In British Columbia there is no such thing as a “legal separation”: you can separate at any time. However, having a "separation agreement" is a legal way to settle assets quicker.
What is a Separation Agreement?
A separation agreement is a signed agreement that outlines how former spouses wish to settle the various issues resulting from their separation.
These issues typically include:
- Division of family assets and debts
- Who will reside or keep the family home
- Spousal support
- Child support
- Custody and guardianship of the children
A separation agreement cannot include an order for divorce, as that must be made by a judge in Supreme Court.
Why do I need a separation agreement?
If you and your former spouse are able to come to an agreement on the issues listed above, drafting a separation agreement is a good idea.
Separation agreements are legally binding documents, that can be filed with, and enforced by the court. They are much cheaper and quicker than going to court. You also have more control over the outcome.
Should A lawyer prepare my separation agreement?
As separation agreements are legally binding documents, they have a long-lasting impact on your legal rights and obligations. Therefore, it may be worthwhile to have a lawyer prepare your separation agreement. A lawyer can help protect your rights and ensure that you understand the implications of any agreement.
Can a separation agreement be thrown out?
Having a lawyer prepare the agreement will help to ensure that the agreement is not vulnerable to being overturned in court.
However, the Family Law Act specifies that upon application of one of the spouses, a court may set aside a domestic contract in one of three instances:
- If a party failed to disclose to the other party significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
- If a party did not understand the nature or consequences of the domestic contract; or
- If the contract is otherwise not in accordance with the law for example: if the contract is unconscionable or there has been a mistake or undue influence.
As a Custodial Parent, Can I Move Away With My Child?
If you have sole or joint custody of your child or children and are considering moving, which will make regular visitation difficult or impossible for the other parent, there are certain procedures that the law in BC requires you to follow. The introduction of the Family Law Act in 2013 has changed the process for applying to move with your child.
First, you must give the other parent or guardian 60 days written notice before you move, outlining where you plan to move and when; this is called ‘giving notice’. The other parent or guardian then has 30 days to ‘object’ to your intended move. If they do not object within 30 days, you may be able to go ahead with your move.
If the other parent or guardian objects to your move, then unless you can reach an agreement, you may need to go to court to have a judge decide if the move is in the “best interests of the child.” Typically, a judge will consider such things as:
- the reasons for the move;
- will the move improve your child's quality of life;
- the child’s connection to their current community;
- the age of the children;
- the involvement of each parent or guardian in the child’s life; and
- the overall best interests of the child.
The court will also consider whether you have made arraignments to maintain relationships with the other parent or guardian, and their relatives, if you are allowed to move.
Moving with a child can be complicated. It is an important decision that should not be made lightly.
Contact us to see how we can help. First consultations are free.
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Can I Cross The Border With A Criminal Record?
This is a difficult question with an often complicated answer. Having a criminal record may impact many different areas of your life; employment, family, travel and more.
When you cross the border, you are no longer bound by the laws of Canada. There are much more intrusive rules that govern whether you will be accepted into the USA. It is a good idea to be informed of your rights and obligations before buying that plane ticket to Disneyland.
Will Getting a Pardon Help?
Record suspensions (formerly called “pardons”) may not necessarily guarantee that you get to cross the border. You may be questioned about the crime you committed and what the outcome was. On the other hand, some people may not be asked about their criminal record and may be able to cross the border for years only to be stopped, questioned, and denied entry out of the blue.
You may choose to seek a waiver from US customs ahead of time. If there was a penalty associated with your court appearance, even if you obtained a discharge, you may still have to seek admissibility. This can be a difficult process and may involve you having to obtain reference letters, get your fingerprints taken, fill out the necessary paperwork, and provide evidence of your tax return, and more.
Going through the border can be a difficult experience.It may be in your best interest to speak with a lawyer if you are thinking about crossing the border with a criminal record. We are here to help.
Contact us to see how we can help. First consultations are free.
Toll-Free: 1-877-860-7575
How Do I Determine Child Support Payment Amount?
The Federal Child Support Guidelines (CSG) regulate child support across Canada. While judges are not bound to follow the CSGs, the majority of the time they are followed by judges, subject to some exceptions.
There are a number of steps that need to be taken to determine the amount of child support:
- First, you must determine how many “eligible” children there are as a result of the marriage. Eligible children typically mean anyone under the age of 19 that was a “child of the relationship.”
- Second, you determine your gross income prior to taxes
- Third, look up your support amount using the above information and the CSG
Calculating child support can get complicated as there are many exceptions to the general rules. One exception is if the child divides their time between both parents, and spends at least 40% of their time with the parent with the least amount of time. Another exception to the CSG may come up if the income of the person paying child support is over $150,000. There are other exceptions which may also impact the calculation of child support.
If you have questions about child support obligations or if you have specific questions on any family law issues, please contact us to see how we can help.
If you require any help, please contact us – first consultations are free.
Toll-Free: 1-877-860-7575
What is a Peace Bond?
Sometimes, the prosecutor may offer to drop a charge against you (a “stay of proceedings”) if you agree to enter into a peace bond.
A peace bond is not a criminal conviction. It is a restraining order under section 810 of the Criminal Code that prevents you from doing certain things such as:
- Not having contact with certain people
- Not going to a certain location
Generally, it will last for one year, and assuming there are no breaches during that year, that would be the end of it. It does not result in a criminal record, but it is an entry in your file. It does not require a guilty plea, but an acceptance of responsibility for your involvement in what happened.
Although a peace bond does not result in a criminal record, a breach of any of the terms of the peace can result in a permanent criminal record. A peace bond could also show up on certain criminal record checks and could affect your employment or ability to travel or your immigration status.
If you are considering entering into a peace bond or had questions as to the impact a peace bond may have on your life, please contact us to see how we can help.
If you require any help, please contact us – first consultations are free.
Toll-Free: 1-877-860-7575
How Do I apply For a Pardon?
If you were convicted of an offence several years ago, but you abide by the terms of your sentence and have stayed out of trouble, you might wish to try to apply to have your criminal record cleared.
The Parole Board of Canada is the organisation responsible for record suspensions. The RCMP will seal your criminal record upon notification that a record suspension has been granted by the Parole Board of Canada.
Recently, the government changed the process for pardons, and they are now called “record suspensions.” In order to apply for a record suspension, you must make an application to Parole Board of Canada. As part of your application, some of the following factors are considered:
1. The date of your conviction
2. The offence you were convicted of
3. Whether you have been convicted of more than one offence
4. Your behaviour in the community after you conviction
Even driving infractions such as speeding or driving without a license can impact on your ability to receive a record suspension. For you best chance of success, you must be on your best behaviour.
Most people will be able to apply for a record suspension without the need to hire a lawyer, and you can find the necessary forms and guides online. Be aware of anyone charging high fees for this service, as with a little research and time, you should apply to make the application on your own.
However, if you require any help, please contact us – first consultations are free.
Toll-Free: 1-877-860-7575
Is Marijuana Legal in Canada?
Is Marijuana Legal in Canada?
There is a common misconception that marijuana is now legal in Canada; however, this is not correct. Cannabis remains an illegal substance under the criminal law, and unless otherwise regulated for production and distribution for medical purposes, you are liable to criminal charges. Possessing and selling marijuana for non-medical purposes is still illegal everywhere in Canada.
Stores that are selling marijuana known commonly as 'dispensaries' are not licensed by Health Canada under the current law and are not legal. Although current media reports and everyday conversation may suggest otherwise, until the laws are changed, marijuana possession and sale remains illegal.
However, the legal status of marijuana in Canada is quickly changing as laws are being challenged in the courts, and there is a suggestion that possession of marijuana may soon be legal in Canada. These changes can be confusing and lead to misinformation.
Contact us to see how we can help. First consultations are free.
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