You will make the process much easier and cheaper in the happy circumstance that you and your spouse agree on all the issues and both want a divorce. The divorce lawyer will then apply to the court for an "uncontested" divorce. There will be no need to appear in court. A judge reviews the filed documents and orders the divorce if the requirements are met.
An uncontested divorce will probably take about four months to complete. This is so because the court registry has thousands of files demanding a judge's attention at any given time. The divorce lawyer has no control over how long the registry takes.
Custody and access
Custody is the right to have the child with you and the right to make parenting decisions about the child, such as school, health care, education, religion and extracurricular activities. It is often lumped with "guardianship," which refers to the full rights and duties associated with the care and raising of a child.
Custody has nothing to do with where the child lives, which is often referred to as "primary residency." "Sole custody" occurs when one person exercises custodial rights and can be advantageous when one parent wishes to relocate a child and the other parent objects. "Joint custody" occurs when more than one person exercises custodial rights. "Shared custody," which is a situation that changes child support obligations of payor spouses, occurs when the child spends more than 40 per cent of the time in a month living in the parental home in which the child is not primarily resident. "Split custody," which is also relevant for child support purposes, occurs when one child lives with one parent and another lives with the other parent.
Access is merely the parent's scheduled time with the child. Access can be unconditional, conditional, or supervised.
This can often be the biggest issue in a divorce law file, particularly if the marriage was long and the assets accumulated over the relationship are significant. The Family Law Act has drastically changed how property is divided. What happens now is this: All property that a person owned prior to becoming a "spouse" is "excluded property." "Spouse" is defined as married people and those who have lived together for two years in a "marriage-like relationship." The key date for the division of property and debt is the separation date, which can make it a hotly contested date. Document disclosure to quantify the value of property can also be hotly contested.
The other spouse has no claim to the principal value of any "excluded property." The other spouse does have a right to half the excluded property's increase in value. So let's assume A has an RRSP worth $50,000. A then becomes the spouse of B. A and B separate five years later. A's RRSP is now worth $75,000. A would keep the original $50,000 A had prior to becoming B's spouse and $12,500 of the increase in value. B would get the other $12,500. It is possible to divide the principal of excluded property between the spouses, but only if it would be "significantly unfair" not to do so.
"Family property," on the other hand, is property that is accumulated after the parties become spouses. Family property is presumptively divided equally, unless it would be "significantly unfair" to do so. "Family debt," is all debts accumulated by both spouses to acquire or maintain family property during the relationship. They are also divided in half between the spouses, unless it would be "significantly unfair" to do so.
Adoption allows a non-biological parent to assume the rights and responsibilities associated with parenting. It also removes those same rights and responsibilities from either (or both) biological parents.
Spousal support is the court's way of compensating a spouse who has come out of a relationship with less earning potential than the other spouse. The classic example is the breadwinner who worked, as opposed to the homemaker who stayed home and raised the kids. Spousal support is designed to recognize the economic advantages and disadvantages of the spouses, relieve economic hardship, and promote independent self-sufficiency within a specified period of time when a relationship breakdown occurs.
Child support always comes first. Spousal support is paid on top of it. The amount of spousal support is always reduced when the payor can't pay both.
How much spousal support is paid/received depends on the spouse's incomes. This often results in a significant amount of your divorce lawyer's time being devoted to securing financial information from the opposing spouse to determine what your spouse actually makes. It is not uncommon for spouses to attempt to avoid a spousal support obligation by artificially deflating their incomes through keeping money in a company, or choosing not to work full-time. A yearly income, called an "imputation" is often made in those situations, which is usually based on the opposing spouse's last tax return, or what they could make if they worked 40 hours a week. The math involving calculating spousal support can be complicated. Your best bet is to use a free calculator, like the one here.
Spousal support is also income in the recipient's hands and tax deductible for the payor. Spouses often pay child support and spousal support together and then attempt to claim more of the payments as spousal support to get the tax deduction. It is always best if you are the recipient to insist upon two payments. Cheques are probably the best, with the words "spousal support" or "child support" written in the memo line. Two separate payments into your bank account can also work.
Results matter when it is about your family
A separation agreement is a contract designed to resolve the issues between the parties when there is a separation or divorce. A separation agreement can be created at any time. A separation agreement can deal with whatever issues the parties want. Keep in mind that a separation agreement must be fair to both parties or it runs the risk of being set aside later once a party discovers how unfair it is.
I never recommend that a client attempt to draft a separation agreement themselves. You are far more likely to have a separation agreement that stands the test of time if a divorce lawyer drafts it.
Some formal requirements of a separation agreement include:
Each party MUST take their separation agreement to a separate divorce lawyer for what is called “independent legal advice” before they can sign it. A party must do this for three reasons:
Other people can have custody or access to a child, such as grandparents or other relatives. People who are not spouses must first get a court's permission and then make their application for an order for custody or access. Courts only take into consideration the best interests of the child, not the wishes of the parents, when making custody and access orders.
Child support is money paid by one parent, the "payor," to the other spouse, the "recipient," where the child is primarily resident. Its sole purpose is to assist with child care. Where the child lives is the determining factor in deciding who is the payor and who is the recipient, which often results in battles over the child's residence. Both parents will pay child support to offset the cost of this arrangement if custody is shared, meaning one spouse has the kids not more than 60 per cent of the time in a month and the other has the kids not less than 40 per cent of the time in a month.
A payor must pay child support. The rationale is simple: You brought a child into the world and are now responsible for them until they are an adult. The amount of child support is determined by the mathematical formulas in the Federal Child Support Guidelines. Often, a court order, or agreement, will also require you to take out a life insurance policy with a payout equal to the lump sum amount of child support you would pay until the child is 19.
In addition, "special expenses," such as daycare costs, educational costs, health care costs and extracurricular activity costs associated to the children can be claimed. Those expenses are paid in proportion to each parent's incomes.
Child support is also tax neutral, meaning neither the payor, nor the recipient, can claim a deduction on their taxes.
A person who is over 19 and is not a beneficiary under the agreement can witness a signature. It's probably best that the divorce lawyer who gives you independent legal advice should witness it.
You will likely want a divorce or you wouldn't be in my office, unless you were unmarried to begin with. Unmarried people are still entitled to resolve issues involving their kids, property, or child and spousal support. It may surprise you, but a divorce is usually the least difficult order to obtain from a court. It is the other things: child support, spousal support, custody and guardianship of children, and division of property that people fight over. Only a marriage breakdown can result in a court order for divorce. There are only three grounds upon which a court can conclude that a marriage breakdown has occurred:
A divorce based on adultery or cruelty can be granted immediately, but the reality is most people obtain a divorce from being separate and apart for one year. They do this because asking for a divorce on one of the other two grounds requires the spouse to prove the ground occurred. Proof of adultery, for instance, is usually obtained by the adulterer swearing an affidavit where they admit the adultery. Evidence will have to be called in a trial if the adulterer refuses to do that. That can be a costly and time consuming process that will often happen after the year has elapsed anyway. So you are better off waiting the year, unless you have a lot of money for a trial.
You will have to show the court that arrangements have been made for child support and their care if children are involved. Child support is a right of the child, not a privilege of the parent. It must be paid by the parent who does not have the children living with them for as long as the children are defined as "children of the marriage" in section 2 of the Divorce Act. This is usually done by either reaching an agreement on child support with your ex, or a court order being made for child support. The amount you pay is based on your income and the mathematical "table amounts" in the Federal Child Support Guidelines. A divorce order will say a divorce shall only occur 31 days after the order is pronounced. This is to allow a spouse 30 days to file an appeal in the B.C. Court of Appeal.
There are two ways an adoption can happen: either voluntarily, by a biological parent consenting to a relative or step-parent taking on the parenting role; or by a stranger through an adoption agency. The first requires a court order. The second requires involvement of government agencies like the Ministry of Children and Family Development (“MCFD”).
Judges have the same concern regarding the best interests of the child when an adoption process is begun in the courts. Section 3 of the Adoption Act outlines the relevant factors a court will consider:
Consent must be given for an adoption to occur through the court system. It can come from a biological parent, though the child must be at least 10 days old before a biological mother can give consent. It can come from a guardian, if someone has been appointed to fill this role. It can come from the child, if they are older than 12. It can also come from the Director, under the Child, Family and Community Safety Act, but only if the child is in the government’s care.
Consent is normally given by the person swearing an affidavit in which they outline their consent. The affidavit is then filed as part of the application for an adoption order.
Consent can also be revoked but only before certain things happen. A birth mother may revoke her consent at any time until the child is 30 days old, or afterwards up to the point where the child is placed with adoptive parents. A child can revoke consent at any time until an adoption order is made. Consent can only be revoked after a child is placed with adoptive parents by application to the court, provided the application occurs before an adoption order is made.
Check out JP Boyd on Family Law for an in-depth look at the above issues and more.