Do I Have To Pay Spousal Support?
Unlike child support, spousal support is not automatically payable following a separation. While child support normally becomes payable following a separation based on such things as the income of the parties, the parenting time or access schedule in place, and the location of the payor parent, spousal support can be more difficult to determine.
Spousal support is often based on the characteristics of your past relationship:
- What are the incomes of the parties?
- How long was the relationship?
- Are the children of the relationship?
- How old were the parties at the time of separation?
- Do the parties have assets?
- Was either party a stay at home parent?
- Does either party have health concerns?
The court will not automatically award spousal support following the breakdown of a relationship. The onus is on the party seeking spousal support to prove that they are entitled to receive support. If the party is the successful improving entitlement, the court must then determine how much support is paid and for how long.
Entitlement to spousal support and the calculation of spousal support involve many factors that are unique to each case. There are also Time limitations which apply to an application for spousal support based on whether you were in a common-law relationship or whether you were married.
If you are either seeking spousal support or are being asked to pay spousal support and have questions about your rights, please contact us to see how we can help; your first consultation is free.
Toll-Free: 1-877-860-7575
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.
Toll-Free: 1-877-860-7575
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.
Toll-Free: 1-877-860-7575
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
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
Retrieving Court Exhibits
How do I get my belongings back?
The amount of time it takes to get your property back depends on the appeal period for the type of case. The time allowed for appeals ranges from 30-90 days. For Supreme (Civil and Criminal), Provincial Criminal, Youth and Traffic Matters, this period is 30 days. For Family Matters, the appeal period is 40 days, and Interjurisdictional Support Orders can be appealed for up to 90 days.
There are a number of ways to get your personal property back:
- After the appeal periods are over you can go to the courthouse, show identification to the registry and obtain your possessions.
- If you are unable to go in person, you may give written permission to someone else to go on your behalf.
- You may be able to retrieve your belongings before the appeal period has expired. If the parties agree in writing that no appeal will be filed, then you may obtain your belongings immediately.
- If your items were not used in court, you must coordinate getting them back with the police directly.
- In both criminal and civil cases, the court may allow you to retrieve your items back right away. This is something that you will have to request from the court after your case is heard.
The court registry will keep your belongings for up to a year after the case has been completed. If there is an appeal, particularly in criminal matters, you will need the help of a lawyer. Different rules are depending on what type of case you have.
Contact us, and we will fight to get your belongings back as soon as possible. First consultations are free.
Toll Free: 1-877-860-7575