Vancouver Family Law Appeals Demand Respect

People who bring Vancouver family law appeals obviously feel the decision they are appealing is wrong. Roughly 25 to 33% of appeals brought are successful but in most cases any lower court orders must be respected pending the hearing of a Vancouver family law appeals.  The recent decision of Hokhold v. Gerbrandt 2015 BCCA 268 held that Court Orders must be obeyed before parties who are dissatisfied with them will be heard on any appeals from them. Our Vancouver Family Law Appeals lawyers have an admirable record for success in both the BC Court of Appeal and the Supreme Court of Canada helping to set precedents for all Canadians in child custody (Young), spousal support (Leskun) family property (Kotar) and child support (Embree). If you need help on your Vancouver Family Law Appeals case call us toll free across BC at 1-877-602-9900.

Spencer MacLean, MacLean Law

Can Someone Seeking The Courts Help Ignore Court Orders?

In short a party cannot thumb their nose at the court system and expect that same legal system to sympathetically listen to their arguments for relief.  In this recent case the Court declined to hear appeal of party who was in arrears with respect to family support and had shown unwillingness to comply with court orders re support.

[10]        In the circumstances, this court became concerned that it might be inappropriate to hear the appeal and thus appear to be assisting a party who has continuously disobeyed court orders, in particular support orders. Accordingly, the Registrar contacted Mr. Hokhold and Mr. Kahn, counsel for Ms. Gerbrandt, on May 22 advising them to be prepared to respond to speak to this matter at the outset of the appeal hearing. We brought to their attention Larkin v. Glase 2009 BCCA 321, in which the Court observed:

In my view, the authority of this Court to refuse to hear or to dismiss an appeal is not limited to disobedience of the order under appeal. The refusal to hear or to dismiss an appeal is based on the policy of this Court to protect the administration of justice by avoiding circumstances where the Court could be held in disrepute by assisting a party who has exhibited disdain for the judicial process. Whether that disdain is of the order under appeal or some other court order may be a matter this Court would take into account in considering how it will proceed, but it is not determinative.

In Bettinson v. Bettinson, [1965] 1 All E.R. 102 (Ch. Div.), Plowman J. stated as follows, at 105-106:

There is a well-settled rule that the court will not entertain an application by a person who is in contempt of court until he has purged himself of that contempt. In Hadkinson v. Hadkinson, [1952] 2 All E.R. 567, Denning L.J., traced the origin of the rule in Chancery back to an ordinance of Lord Bacon in the year 1618, which laid down that

‘They that are in contempt … are not to be heard [sic] neither in that suit, nor any other, except the court of special grace suspend the contempt’.

More recently, courts have considered the issue more in context: the decision to hear or refuse to hear a party is treated as a matter of the court’s discretion. [At paras. 31-2, 34.]

[12]        Mr. Kahn provided other authorities which affirm that a person who has not paid a support order must provide a “convincing reason” to this court as to why his appeal should be heard: see Bullock v. Bullock 2008 BCCA 162; Berry v. Berry 2002 BCCA 129. Bullock involved a failure to pay spousal support.

[13]        Having heard from both Dr. Hokhold and Mr. Kahn, we formed the view that Dr. Hokhold had not provided any “convincing explanation” as to why he remains in arrears with respect to the Supreme Court orders relating to support. In the circumstances of this case, the administration of justice would be called into disrepute by our hearing an appeal at the request of a person who has exhibited disdain for the judicial process and continues to use this process to overwhelm his former partner. [14]        It was for these reasons that we informed Dr. Hokhold and counsel that the appeal was dismissed, with increased costs to Ms. Gerbrandt.

Our top rated lawyers at MacLean Law are standing by to help you so contact us as you have only days to file your Vancouver Family Law Appeals case.

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Our highly rated and respected BC family lawyers feel that BC Parental alienation is the cruelest form of family violence. While spouses may not stay together forever, our BC parental alienation lawyers know that “parents are forever”. We do not believe, a good parent in all other respects, is a fit and proper parent to have primary residence if they are a naive or active alienator. We are also aware that while parental alienation is often alleged it is less common than one would think. Enmeshment and estrangement are concepts we carefully explore in these type of cases. When this insidious form of malevolence involving a child appears prompt action is required. Our BC Parental Alienation Lawyers will aggressively pursue intervention by psychologists, through judicial interviews of the children and reunification therapy to protect children from becoming unwitting victims.

If you think you may be a victim of parental alienation watch Lorne MacLean, QC explain it in this short video he stars in on Family Matters TV. He leads a dedicated team of BC Parental Alienation Lawyers who are familiar with both sides of this dilemma.

BC Parental alienation lawyer, John Nelson of MacLean Law

Parental Alienation Should Not Be Tolerated

In a recent judgment of Mr. Justice Harvey in L.D.K. v. M.A.K., 2015 BCSC 226, a father’s custody and guardianship of his two teenage children was reversed with the entire family being enrolled in a family reunification camp by court order. Any status quo arrangement resulting in one parent being estranged from a child is vulnerable to judicial intervention where alienation can be proven. Five lessons can be learnt from this recent case:

1. Final orders, including consent orders, are NEVER permanent where children are involved.
2. That the best interests of children are viewed by the court in the long-term not the short-term.
3. That an expert report on alienation, that does not involve interviewing the children or both parties, is useless.
4. That failing to be part of the solution makes one part of the problem.
5. There is more than one way to get a child’s views before a judge.

BC Parental Alienation Lawyers Must Act Quickly

If a person and their ex-spouse enter a consent order regarding parenting arrangements, that order is not written in stone. While not explicitly referred to by the trial judge, section 47 of the Family Law Act and section 17 of the Divorce Act both allow the court to vary an order regarding parenting arrangements if the variation in the best interests of the child and that there has been a change in the child’s circumstance. Where the parties agree to shared parenting and the child votes with his or her feet to live exclusively with another parent,L.D.K. stands for the proposition that the court can return the child to the estranged parent. In the case, the change in guardianship was accompanied by an intensive family reunification therapy program. Lorne MacLean, Q.C. has regularly obtained 50% parenting time for his clients where alienation was at play. An alienated parent can regain their relationship with their children but one needs to prove that reunification is in the best interests of the child.

Where a child is adamant that they do not wish to see the other parent, the child’s wishes are irrelevant if it is in that child’s best interests to be reunited with that parent. The court looks at the long-term benefits of the relationship, not any short-term discomfort or inconvenience when determining a child’s best interests. The courts have found in this case and in many others that a child’s inability to have insight into their estrangement from one of their parents is sufficient reason for the courts to intervene and reunify the child with that parent.

An expert report by a psychologist on parenting arrangements, commonly referred to as a “section 211” report, requires interviews with the children. Getting consent from the other parent to participate in a 211 report is likely impossible if one is the alienated parent. Hiring a psychologist to write a report on alienation that does not involve interviewing the children is not worth the paper it is printed on because the courts will give such a report very little evidentiary weight. An alienated parent is in a much better position to go to court and ask the court to order the other parent to participate in a 211 report than try and vary a parenting order without a valid 211 report.

Where the court has identified that a parent should take an active role in facilitating a relationship with the other parent, woe be to that parent who does not actively take steps to follow the direction of the court. In L.D.K., the respondent father lost custody and guardianship, in part, because the court found that the respondent father had made no attempts to facilitate a relationship between his two children and their mother. Judges regularly give a withering look to parents who look up at the bench and say “well, the kid just doesn’t want to go” especially where younger children are involved. It is essential that a parent applies to court to vary an existing court order regarding parenting arrangements if there is a valid reason why your child does not want to see the other parent. Otherwise, a parent could find themselves in contempt of a court order which will not advance that parent’s goal to maintain the status quo.

Good BC Parental Alienation Lawyers Seek A Judicial Interview In Some Cases

Mr. Justice Harvey in L.D.K. acknowledged that he took the unusual step of interviewing the children directly. This is just one of several ways to get the views of a child in front of a judge. A judge may interview a child directly without the consent of either parent, but a court order is required for the interview to take place. Many members of the judiciary do not feel they have the skill set to interview children, which can lead to the court declining to make such an order. However, one can save both the time and expense of hiring an expert if you can persuade the court to order a judicial interview, which takes place in the judge’s private office without lawyers or parents present.

A Needs of The Child Report Can Help 

A views of the child report is the cheapest of two expert options and will cost about $2500. A needs of the child report, aka a 211 report, involves both interviewing the child, interviewing the parents, interviewing collateral witnesses, and conducting psychological testing on the parents and the child. A full 211 report can cost between $10 – $14,000. A family justice counsellor can prepare a 211 report for free, but the waiting list to obtain such a report from a family justice counsellor  can be over a year.

Finally, there is the rare method of asking the court to appoint a lawyer to represent the child and prepare the child’s affidavit. There is currently a pilot project in Victoria and Nanaimo where the court can appoint a free lawyer to a child. Once again, this is another no-cost solution for parents who cannot afford to pay thousands of dollars on an expert report.

But parents should be aware that there is no guarantee that an expert report will be in their favour. Which is why hiring a lawyer can make the difference in either being able to see your children again or preventing a parent who shouldn’t see their child from doing so. A lawyer can advise whether or not a section 211 report is right for you, whether alienation is at play, which expert to hire, which experts to avoid, the merits of various reunification programs, and what to do when the 211 report does not turn out how one hoped it would. Going to court alone is a risk just not worth taking when it comes to your relationship with your children. A lawyer is an essential ingredient when seeking a parenting order that is in the best interests of your children.

Don’t Delay- Act Quickly So Things Do Not Get Worse

Our BC Parental Alienation Lawyers act out of 4 offices in BC in Vancouver, Surrey, Kelowna and Fort St John. Call our BC Parental Alienation Lawyers toll free at 1-877-602-9900 because your children deserve to be protected from parental alienation and just as importantly you need to protect yourself if you have been falsely accused of being a parental alienator.

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Our Dawson Creek family lawyers and Fort St John BC family property division lawyers handle numerous Dawson Creek family property and family debt division cases each year from our Fort St John and Dawson Creek office. In cases involving the family home, often called the Matrimonial Home, our Dawson Creek Family Lawyers will often have experts appraise it so it can be divided. However, our Dawson Creek Family Lawyers can also seek an Order for Sale which is the only true way to value the home if parties can’t agree on what it is worth. Sometimes one party to a family breakdown is stubborn and blocks an appraisal.  

Lorne MacLean QC high net worth divorce lawyer

In other cases our Dawson Creek Family Lawyers know the home must be sold to free up money to settle the case, to pay off arrears on a mortgage, to salvage as much equity as possible if foreclosure proceedings have been commenced or lastly to facilitate a fair division of Dawson Creek family property after trial.

You can meet with us at our downtown Fort St John/ Dawson Creek office by clicking here now.

Sole Conduct Of Sale Of family Home

Our Dawson Creek Family Lawyers just reviewed the recent case of Andermatt v. Tahmasebpour, which explains the test for giving one spouse sole conduct of sale in Dawson Creek family cases.

[111]     While the claimant and the respondent agree that the matrimonial home should be sold and the proceeds divided, they each seek sole conduct of the sale.

[112]     Section 97 of the FLA authorizes the court to order the sale of property for the purpose of giving effect to a division of property. Rules 15-8(1) and (2) permit the court to make orders for the sale, and the conduct of sale, and orders requiring a person in possession of the property to join in the sale and transfer of the property.

[113]     In McLachlan v. McLachan, 2013 BCSC 1733, the court held, at para. 67:

There is no singular test for granting sole conduct of sale. Rather, the court considers all factors relevant to affecting a sale ordered, to determine whether granting sole conduct of sale is necessary or expedient. The parties’ inability to cooperate or agree with one another may provide appropriate grounds.

[114]     Here, joint conduct of sale is not practical. The high level of conflict between the parties prevents them from cooperating effectively. An order for sole conduct of sale is necessary.

[115]     The respondent contends that as the party in possession of the matrimonial home it is most convenient that he have the sole conduct of the sale. He also asserts the claimant comes to court with unclean hands and should not be trusted with the sale of the matrimonial home. In support of that assertion, the respondent refers to the claimant’s transfer on March 17, 2014 of approximately $44,000 from the account of DORI to a “secret account”, and also contends she misrepresented herself to the Court by describing her position with DORI as “Director of Business Development” when she was not a director of the company. As I have previously noted, that title simply described the functions Ms. Andermatt performed for the company. The respondent’s allegation that the claimant falsely represented to the Court that she held the office of director is without merit. [116]     The claimant did make an unauthorized transfer of one-half of the funds in DORI’s account to an account she opened to hold those funds. She did so after the respondent had significantly increased his withdrawals of funds from DORI. Through her counsel, Ms. Andermatt notified the respondent on the same day she withdrew the funds. CIBC later reversed the transfer. The funds are now held in an account requiring the signatures of both parties. The claimant did not expend any of the funds while she held them in her account. While the claimant ought not to have made the unauthorized transfer, in the particular circumstances of this case her conduct does not disqualify her from consideration for having conduct of the sale of the matrimonial home.

[117]     The respondent also argues the claimant misled CRA by filing incorrect tax returns in which she split the rental income from the West 13 property equally with the respondent, rather than declaring all of that income on her own return, and also provided inaccurate information concerning her Andermatt Consulting income and expenses. The claimant contends the respondent was responsible for preparing her tax returns for 2009 through 2012. Regardless of whether or not that was the case, the claimant made voluntary disclosure to CRA upon receipt of professional advice regarding the errors in her tax returns.   I find that the claimant’s prompt and full disclosure is inconsistent with any intention to mislead CRA. The respondent has not established any conduct on the part of the claimant that would disentitle her to conduct of sale of the matrimonial home. [118]     For her part, the claimant asserts that the respondent, who is living mortgage free in the matrimonial home, has an incentive to delay the sale. [119]     With the assistance of her counsel, Ms. Andermatt conducted the sale of the West 13 property in an expeditious, business-like and efficient manner. In my view, that is the determining factor here. [120]     The matrimonial home located at 3508 Inverness Street, Vancouver, British Columbia will be listed for sale forthwith and sold. The claimant will have sole conduct of the sale, which will be subject to court approval.

[121]     I also make the following orders with respect to the sale of the matrimonial home:

(a)     the respondent will allow the realtor selected by the claimant access to the property for the purpose of the initial assessment of market value and determining if there are any cosmetic improvements or repairs that need to be done to improve the value of the property;

(b)     the respondent will allow the realtor to post signs on the property;

(c)     the realtor may conduct open houses on 48 hours’ notice to the respondent and may otherwise show the property to prospective buyers on 24 hours’ notice to the respondent;

(d)      the respondent will ensure that the property is kept in a clean and tidy condition for those open houses and showings; and

(e)     neither the respondent nor the claimant will be present during any showing of the property.

[122]     The net proceeds of sale of the matrimonial home will be held in trust by the claimant’s solicitor and will be paid out as follows:

(a)     pay to the claimant $192,000 on account of the excluded property from her inheritance;

(b)     the remainder will be divided equally between the parties subject to the following adjustment:

1. from the respondent’s share, payment to the claimant of $54,105 on account of the value of her interest in DORI.

[123]     I have received no evidence on this application of the value of the contents of the matrimonial home. The parties will divide equally the household furnishings and all other contents of the matrimonial home, other than any excluded personal property of the parties, or any property of DORI. While the Court expects the parties to work out that division without further judicial intervention, the parties are at liberty to apply for further directions on the disposition of the contents of the matrimonial home, if necessary.

If you have a difficult family law case involving real estate, the family home or other family property such as a family business call our experienced Dawson Creek family lawyers to set up a consultation.

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VANCOUVER CHILD PARENTING TIME  GUARDIANSHIP LAWYERS

Vancouver child custody, Vancouver child parenting time  and BC “parenting responsibilities” and BC “parenting time” are phrases used in BC courts when Court decisions regarding children are involved. Joint guardianship no longer exists in BC, rather both parents will remain as guardians if they have a history of shared involvement in raising their child. The experienced family law lawyers at MacLean Law are pleased to sit down with you to review Vancouver child parenting time  concepts with you at any of our 4 offices across BC located in Fort St John/Dawson Creek, Kelowna, South Surrey and Vancouver. We routinely help clients settle Vancouver Child Parenting Time  issues and are adept at winning the most complex and high conflict child parenting time cases. what is Vancouver Child Parenting Time? We explain the meaning of Vancouver Child Parenting Time below and break down the different aspects of it and how guardianship plays a huge part in your ability to spend time and make decisions with respect to your child.

Jennifer Lin Surrey Child parenting Time Lawyer

What Happened To BC Child Custody?

When talking about children of separated parents, you will often hear the word “custody” referred to by your friends, family members or on TV. People usually think this word means the time that each parent physically spends with the child. However in BC, “custody” is no longer the only word that is commonly used by BC family courts. Though the word “custody” is still used in our federal family law legislation, the Divorce Act, the word is no longer used in BC’s provincial family law legislation, the Family Law Act. The decision to use “parenting responsibilities and parenting time” was deliberate and designed to be less confrontational. Vancouver Child Parenting Time cases are encouraged to be settled outside of court through negotiation, mediation, arbitration or the collaborative family law process.

BC Parenting Time

In BC under our Family Law Act, we use the words “parenting time,” “parental responsibilities” and “guardian”. Vancouver Child parenting time is the amount of time a guardian parent spends with a child. BC guardians have the right to be involved in the decision-making of significant issues affecting your child. BC Parental responsibilities are a bundle of certain specific rights regarding common significant issues affecting the child, such as the ability to apply for a passport on behalf of the child, or the ability to request the child’s report cards or doctor’s records. Under the BC Family Law Act joint guardianship no longer exists.

What is Child Contact?

Only a guardian may exercise parental responsibilities and exercise parenting time. You can also be a parent but not be a guardian of the child, in which case any time you spend physically with the child is referred to as “contact.” To repeat you need to be a guardian to have Vancouver Child Parenting Time.

What Powers Does A Guardian Have?

Section 41 of the Family Law Act defines parental responsibilities:

41  For the purposes of this Part, parental responsibilities with respect to a child are as follows:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i)   starting, defending, compromising or settling any proceeding relating to the child, and

(ii)   identifying, advancing and protecting the child’s legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child’s development.

The above parental responsibilities can be shared equally between the guardian parents, or can be solely exercised by one parent only, or can be any kind of arrangement in between.

It is important to note that a 100% allocation of parental responsibilities to one parent does NOT mean that parent is the child’s sole guardian.

Is It Bad For Me To Give Up Being A Guardian –YES!

J.W.K. v. E.K., 2014 BCSC 1635, a 2014 BC Supreme court decision, explains the interplay between parental responsibilities and being a guardian: (emphasis added)

[32]       In terminating the father’s guardianship, the trial judge appears to have accepted the view that a complete reallocation of parental responsibilities is inconsistent with the scheme of guardianship established by the FLA. However, s. 40(4) says that “no particular [parenting] arrangement is presumed to be in the best interests of the child” and specifically says that it should not be presumed that parental responsibilities should be allocated equally among guardians. In my view, this gives the court complete discretion to determine what allocation is in a child’s best interests, up to and including a complete allocation of parenting responsibilities in favour of one guardian. There is no indication in the FLA that allocating all responsibilities to one parent would automatically terminate the other parent’s guardianship; hence, doing so is not inconsistent with guardian status.

 

[33]       Similarly, s. 42(2), the parenting time provision, notes that during parenting time a guardian may exercise the parental responsibility of making day-to-day decisions and having day-to-day care and control of the child “subject to an agreement or order that provides otherwise.” As a result it is consistent with a parent’s continued status as guardian to make an order that results in a complete restriction of a guardian’s exercise of parental responsibilities, even during their parenting time.

 

[34]       Also consistent with this view is the fact that a guardian who has no parental responsibilities still has legal rights under the FLA that confirm and promote their involvement in their child’s life. As the trial judge noted, only a guardian can challenge an application to relocate. This is not an insignificant right. In addition if a child’s guardian dies and the surviving parent is not a guardian, they do not automatically become a guardian but must apply for an appointment. Also, s. 49 of the FLA allows a guardian to apply to a court for directions respecting an issue affecting a child. Only a guardian can make such an application. A parent who is not a guardian but with contact has no legal right to challenge the other parent’s actions in court. As a result I conclude that even without parental responsibilities, guardianship still has a meaningful legal status. Additionally, as noted earlier, it has a symbolic status: a guardian is seen as playing a “parental” role in a child’s life, even when not exercising parental responsibilities.

[35]       The separation in the FLA between guardianship and parenting rights permits a parent to remain a guardian even when the circumstances indicate that it would not be in the child’s best interest for that parent to exercise parenting responsibilities. [36]       I note as well that once guardianship is lost, under the FLA it may be difficult to regain. The process for applying for appointment as a guardian under s. 51 is not a simple one, procedurally or legally. On the other hand, reallocation of parental responsibilities is a comparatively simple matter; the court can reallocate following a regular chambers application. Termination is far less flexible. As such, reallocation is better suited to address shifting familial circumstances.

Summary

To summarize, a parent who does not have any parental responsibilities assigned to him or her, but is still a guardian, still retains the following rights:

(1) right to seek a review of any of the other guardian’s decisions regarding the child,

(2) right to receive notice of the other guardian’s intention to relocate with the child and

(3) right to be eligible to be the child’s sole guardian upon the death of the other guardian without needing to bring a court application.

Being a child’s guardian therefore bestows on that person significant rights and entitlements, and having parental responsibilities on top of that enables that guardian to be even more involved in the child’s life and involved in making decisions that significantly affect the child. Giving up parental responsibilities is a serious matter; giving up guardianship rights is even more so.

We strongly recommend that you speak to our highly experienced family lawyers at MacLean Law before you enter into any kind of agreement regarding your rights pertaining to your child. You can also call us toll free at 1-877-602-9900 across North America if you have a Vancouver Child Parenting Time concern.

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Vancouver Spousal Support Lawyers of MacLean Law Will Protect You

Lorne N. MacLean, QC has successfully helped clients deal with hundreds of Vancouver spousal support cases over the past 33 years. He heads BC’s largest family law firm with 18 lawyers and 4 offices across BC. Our Vancouver Spousal Support Lawyers explain that spousal support can often be viewed as a slightly more complicated version of the tale of Robin Hood.

As you’ll see at the bottom of this article, a number of complicating factors make spousal support law a land mine for unwary spouses after marriage breakdown. Don’t make the biggest mistake of your life, call us at 604-602-9000 or click here to meet with us.  High net worth individuals who make a mistake often greatly magnify the error so don’t delay. Lorne MacLean, QC has helped set the law of support in the Supreme Court of Canada and our own BC Court Of Appeal, by successfully tripling spousal support trial judgments, obtaining some of the highest spousal support awards in BC and at the same time forcing recipient spouses to be accountable and to work to become self sufficient.

The Tale of Robin Hood and Vancouver Spousal Support?

Vancouver Spousal Support Lawyers MNP Tower office of MacLean Law

Our Vancouver Spousal Support Lawyers explain Vancouver spousal support is paid by a spouse who earns more to the other spouse who earns less. Support can be ordered on contractual grounds (there is a marriage agreement) compensatory grounds (someone gave up their career for example to be a homemaker) or non-compensatory  grounds (someone was not prejudiced by their role in the marriage but they need money to make ends meet). When you need support or are being asked to pay support and you are unsure of what’s fair, it pays to meet with the skilled and tenacious Vancouver Spousal Support Lawyers at MacLean Law. Too many people try to be a hero and overpay and too many people try to be a martyr and take too little or nothing leaving them in financially desperate straits. Don’t make a huge support mistake when you can meet with our Vancouver Spousal Support Lawyers MNP Tower office of MacLean Law now.

Vancouver Spousal Support Lawyers Summarize A Recent Case That Explains How Spousal Support Works

Our Vancouver Spousal Support Lawyers at MacLean Law are pleased to summarize a recent Vancouver spousal support case that reviews how spousal support works in detail:

[12] The relevant factors to consider in this claim for spousal support are set out in the Divorce Act.

* 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.* …

Vancouver Spousal Support Lawyers highlight the key statutory principles the court looks at

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

o (a) the length of time the spouses cohabited;

o (b) the functions performed by each spouse during cohabitation; and

o (c) any order, agreement or arrangement relating to support of either spouse.

* …

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

o (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

o (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

o (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

o (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[13] In Chutter v. Chutter, 2008 BCCA 507, the Court of Appeal outlined that a spousal support order can be made on a compensatory or non-compensatory basis (as well as on a contractual basis). Rowles J.A. said: [47] Based on the statutory provisions and the case authorities, the Supreme Court of Canada has identified three grounds for entitlement to spousal support: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support (Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at paras. 15, 41-42, 44 R.F.L. (4th) 1). [48] The claim for spousal support in this case was advanced on compensatory and non-compensatory support principles. [49] Although the compensatory and non-compensatory grounds for spousal support are animated by different models of marriage, the case authorities hold that there is no single basis of support or objective under the Divorce Act that supersedes the other, and that many claims involve aspects of both compensatory and non-compensatory principles (Bracklow, at para. 27; Moge, at 852). A court is not called upon to decide on one basis for support to the exclusion of the other but rather to “[apply] the relevant factors and strik[e] the balance that best achieves justice in the particular case” (Bracklow, at para. 32). Moreover, the doctrine of equitable sharing is the overarching principle that must be borne in mind (Moge, at 864).

Vancouver Spousal Support Lawyers highlight the rules for Vancouver spousal support based on compensatory grounds:

[14] Rowles J.A. described compensatory support:

[50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868:

The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being. In such situations, spousal support may be a way to compensate such economic disadvantage.

[51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added). [52] The Court in Moge discussed the relevance of the parties’ standards of living in the context of compensatory support at 870:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement…. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.

Vancouver Spousal Support Lawyers highlight the rules that provide for an award of needs based non-compensatory support:

[15] She also described non-compensatory support:

[54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, at para. 43). Non‑compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.

[55] The concept of “needs” in the context of non-compensatory spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties. As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10:

“Need” or “needs” are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. “Need” does not end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence. “Needs” is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted.

[56] The Ontario Court of Appeal in Allaire v. Allaire (2003), 170 O.A.C. 72, 35 R.F.L. (5th) 256, held that self-sufficiency, a spousal support objective primarily related to non-compensatory support (Bracklow, at paras. 41-42), was a relative concept informed by the standard of living previously enjoyed by the parties: [21] … self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire’s income, it is inappropriate to consider Ms. Allaire’s annual income of $68,000 as “sufficient” without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared as a couple. [57] In Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 41, 48-49, 16 R.F.L. (6th) 430, Prowse J.A. referred to Myers and further held that in the context of a long-term marriage involving a sharing of resources, the concept of “need” should take into account the relative standards of living of the spouses following the marriage breakdown. In Yemchuk, the husband had appealed the decision of the trial judge dismissing his claim for spousal support on the basis that he had not established any need. While Prowse J.A. found that the husband was entitled to spousal support on compensatory grounds, she also went on to state that the trial judge’s treatment of the husband’s need for support had been “unduly restrictive”: [41] I am also satisfied that the trial judge erred in viewing Mr. Yemchuk’s “need” for support from too narrow a perspective. He treated “need” as solely a question of whether Mr. Yemchuk could meet his stated expenses with the income available to him. After attributing $800-$1,000 per month to Mr. Yemchuk, the trial judge found that Mr. Yemchuk could meet his expenses and, therefore, was not entitled to support.

Spencer MacLean, MacLean Law 604-602-9000

Our Vancouver Spousal Support Lawyers know the area of spousal support is tricky and you must ensure both parties are working to their capacity, as the right incomes have to be used for the calculations we make to lead to a fair result. Self sufficiency, retirement, re-partnering, self employment, the presence of children and the custodial arrangement, underemployed spouses all require a tough and experienced lawyer to sort through. Call us at 604-602-9000 to ensure you are protected.

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How is Vancouver Self Employed Support Calculated?

Our Vancouver Spousal Support lawyers are aware of the pitfalls that face both support paying and support receiving spouses when they are involved in Vancouver Self Employed Support disputes. Unlike employed spouses,  spousal and child support cases involving self employed spouses require more scrutiny to determine guideline income so a proper support award is paid. In cases involving the available income of business owning spouses, professionals who operate a professional corporation, real estate developers and others who can control their income, a careful analysis of company financial statements needs to be undertaken. Our Vancouver Self Employed Support lawyers handle complex support negotiations and court hearings regarding company pre-tax profits and we will work with you to ensure a just and proper result. When our high net worth clients are involved in a Vancouver Self Employed Support case, the stakes are huge. We cannot let the paying spouse’s company’s ability to make profits be impaired but we must also ensure that no end run around fair spousal and child support occurs.

VANCOUVER SELF EMPLOYED SUPPORT LAWYER LORNE MACLEAN, QC

Lorne MacLean, QC has made a reputation as being a tenacious, no nonsense, negotiator and more importantly he is revered by his high net worth clients as a savvy trial lawyer in cases involving company pretax profits and spousal and child support.

MacLean knows you NEVER USE THE BUSINESS OWNERS PERSONAL TAX RETURN AS THE STARTING POINT FOR INCOME FOR SUPPORT PURPOSES.

He was also one of the first lawyers to argue successfully that sometimes the paying spouse’s tax return income is too high when they own a company for tax planing reasons or when the monies withdrawn by the owner put the company in a deficit position.

A Vancouver Self Employed Support case requires deft handling by a highly skilled lawyer to prevent an unfair result or even worse a financial disaster.

Earlier Vancouver self employed support cases were very aggressive in dealing with pre-tax company or professional practice profits. BC courts routinely used the majority of the self employed profits made in the fiscal year  to the guideline income of the paying spouse and added them to the money drawn out by the business owner. More recent cases focus on cash flow needs for the business to ensure the “golden goose” that provides the profits for the separated family unit is not killed and there is increased deference to business owner’s decisions on how to use income they make.

A Vancouver Self Employed Support case will involve looking at the businesses’ need for working capital for:

• expansion
• replacement of buildings or equipment
• bad debt
• risk of economic slowdown
• new business ventures
• payment down of debt
• compliance with banking requirement
• compliance with shareholder agreements
• contingencies to deal with law suits
• monies needed by a new business to keep it solvent where cash flow needs are not yet clear

What Are Pre Tax Profits and Why Should I Care?

In a case just released this week Mr. Justice N. Brown gave a great review of what the court considers when determining what a business owner’s real income is for child and spousal support purposes:

Legal Principles for determination of Guidelines income

[27]         In K.S.F. v. S.M.F, 2011 BCSC 1563, I reviewed case law on the subject of determination of total income under the Guidelines.

 

[37]      … Usually, the total income of a spouse in a given year can be based on the “Total Income” a spouse reports in their T1 General Tax form issued by CRA: Guidelines, s. 16. But if a spouse’s pattern of annual income shows this would not be the most fair and reasonable way to fix Guidelines income for support purposes, the judge may consider fluctuations in a spouse’s income over the previous three years. The judge can also consider nonrecurring income during that three-year period and fix an amount the judge finds proper: Guidelines, s. 17(1).

 

[38]      If the effects of a nonrecurring capital or business loss do not give a fair picture of a spouse’s annual income, the judge may impute an amount for total income they find proper: Guidelines, s. 17(2).

 

[39]      If a spouse is a shareholder of a business … and the judge believes a spouse’s T1 “Total Income” does not fairly reflect all the money available to the spouse to pay support, the judge may consider the spouse’s income pattern over the previous three years: Guidelines, s. 18(1).

 

[40]      The judge can also include in the spouse’s total income all or part of the corporation’s pre-tax income: Guidelines, s. 18(1)(a). Alternatively, the judge may fix an amount that agrees with the services the spouse provides the corporation, so long as the amount does not exceed the corporation’s pre-tax income: Guidelines, s. 18(1)(b).

 

[41]      Unless the spouse shows that all amounts for salaries, wages or management fees were reasonable in the circumstances, s. 18(2) of the Guidelines requires the judge to add those amounts back to pre-tax income of the corporation.

 

[28]         Further, more specifically on the subject of pre-tax earnings and retained corporate earnings, the following authorities were noted at paras. 43 – 47:

 

[43]      In Kowalewich v Kowalewich, 2001 BCCA 450, 92 B.C.L.R. (3d) 38 [Kowalewich], Huddart, J.A., writing for the Court, stated at paragraph 40 that a judge should not look only to the value of a spouse’s pay or their services to the company they own or control. At paragraph 42, she explained the purpose of the Guidelines is

 

… to permit an impartial assessment of “money” available to a spouse to pay child support. They are not just about actual income as a parent directly or indirectly determines it to be.

 

[44]      Huddart J.A agreed at para. 43 of Kowalewich with comments Justice Martinson made in Baum v. Baum (1999), 182 D.L.R. (4th) 715, 7 R.F.L. (5th) 231 (B.C.S.C.), at para. 28:

 

[28]      Valid corporate objectives may differ from valid child support objectives. The purpose of s. 18 is to allow the court to “lift the corporate veil” to ensure that the money received as income by the paying parent fairly reflects all of the money available for the payment of child support. This is particularly important in the case of a sole shareholder as that shareholder has the ability to control the income of the corporation. [Authorities omitted].

 

[45]      However, a judge tasked with determining a spouse’s total income under the Guidelines can consider the value of a spouse’s services to the company; sometimes, this will be a fairer basis for doing so: Kowalewich, at para. 65.

 

[46]      But in a case such as this, where the husband exercises total control over AGB’s finances and where the wife’s continuing partial share ownership is an immaterial consideration because she had no financial control at all, I should focus on the total income the husband had available to him to pay child and spousal support. To determine his total annual income, I should therefore consider pre-tax corporate income, non-arms length transactions without value to the company, inappropriate expensing and any other unjustified diversions … that effectively deprived [the child] or the wife of the support they were entitled to: Kowalewich, at paras. 48-50.

[47]      For child support, Huddart J.A. stated at paragraph 45 of Kowalewich that to determine whether a spouse’s “Total Income” fairly reflects money available for child support, a court might ask

 

… what an objective well-informed parent would make available for child support in the circumstances of a particular business over which the parent exercised control, having regard to the objectives of the Guidelines, the underlying parental obligation to support children in accordance with one’s means, and any applicable situation in s. 17.

 

[29]         I then considered how much pre-tax corporate income should be incorporated into the payor’s annual income at paras. 48 – 49, 51 – 54 and 58: [48]      Pre-tax corporate income often represents an “owner’s entrepreneurial capacity and investment” and a source of income “an intact family would utilize”: Kowalewich, at para. 48. But this is not always so. As Huddart J.A. noted, a court’s effort to ensure fairness does not require it to second-guess business decisions, but to make a fair assessment of how to share income for family and business purposes: Kowalewich, at para. 44. This test requires a judge to consider evidence of legitimate business calls on pre-tax income before including an expense in corporate pre-tax income: Kowalewich, at paras. 58-59. [49]      Neither the pre-tax profit of a company nor its losses are automatically included in annual income. The Guidelines allow, but do not require inclusion. Inclusion is not the default position: Kowalewich, at para. 54. [51]      Referring to findings made by the two different judges presiding below, Huddart J.A. stated that money the spouse needed to maintain the value of the business as a viable going concern would not be available for support purposes and should not be included in determining annual income: Kowalewich, at para. 58. She also noted that in Hollenbach v Hollenbach, 2000 BCCA 620, the trial judge recognized it was a legitimate business purpose for a real estate business to set aside a reserve for depreciation. In addition at para. 60, she noted the parties had not asked the accountants giving evidence for their opinions on the company’s need to finance a planned expansion.

[52]      Dorgan J., one of the trial judges hearing Kowalewich, canvassed several categories of business purposes she thought were legitimate in that case. These were noted at para. 61 of Kowalewich. They included: a reasonable salary for management; an adjustment for a store closure; money needed for expansion; depreciation; economic downturns; and a return on the paying spouse’s capital investment. Huddart J.A. did not criticize the categories. She found, however, that the trial judge had attributed too much of the pre-tax corporate income to Mr. Kowalewich’s income: Kowalewich, at para. 62.

[53]      The pattern of pre-tax income in a small business … can rise and fall for any number of reasons, ranging from souring economic conditions to strategic accounting for tax purposes. A responsible owner of a business dedicated to selling and installing auto glass would likely need to reserve against economic slowdown and declining sales; as well as for deferred maintenance, depreciation, and possible tax liabilities. The owner, looking at all their information, including fluctuations in sales and earnings, has to make sure the business can continue operating in the future. This obviously indirectly benefits not only the company, but also a spouse or child eligible for support. [54]      In sum, Kowalewich confirms a judge should not make an order that prevents the paying spouse from running their business as profitably as possible, or that prevents them from making good business decisions. But the owner spouse must state business income and allocate expenses honestly and transparently. Expenses must be reasonable and for legitimate business purposes, considering all the circumstances. The reasonable needs of a child and spouse entitled to support must be balanced fairly against legitimate business calls on pre-tax corporate income. If the paying spouse fails to so act, the court will see to it. [58]      I note as well that in Kowalewich, neither the Court of Appeal nor the judges at trial had much in the way of specific or clear evidence on business purposes before them. Some findings can rest on evidence about the nature of the business and judicial discernment of the capital needs of the business. [Emphasis added.]

[30]         In Reis v. Bucholtz, 2010 BCCA 115 at para. 48, Justice Groberman held the paying spouse bears the onus of establishing that pre-tax corporate income is being kept by the company for business purposes on the civil standard of a balance of probabilities. The evidence in support should be clear: Jeffery v. Motherwell, 2006 BCSC 140 at para. 13.

 

Top Family Lawyers Dig Deep Into Company Financials

A skilled lawyer like Lorne MacLean, QC will review personal benefits buried in business deductions and add back both spouse’s salaries to the pre tax profits and look at entertainment, travel, cell phones, vehicle expenses amortization, capital gains ( they must be doubled!) and retained earnings.

[42]         VIE appears to be viable, but to maintain viability it will need capital to purchase new and replacement equipment, storage facilities, and some outside office management, especially if the respondent is to find time to widen the scope of geographical locations, type and complexity of projects the company undertakes. Such business expansion would likely strengthen the company’s finances and help fence out market vagaries. Otherwise, as a young company, VIE will remain financially vulnerable. VIE’s retained earnings at a given time are subject to legitimate business calls and the amount recorded is not necessarily representative of freely available funds. [43]         The cases recognize what might be characterized as the “deft touch” a judge must use when dealing with small businesses and their retained earnings. Usually, owners know their businesses better than anyone else. They are more attuned to the competitive forces and economic vagaries it faces, the capital it requires, and the foreseen or foreseeable expenses it will incur. The payor carries the burden to prove the business legitimacy of expenses and retained earnings. But as Huddart J.A. noted in Kowalewich, a court’s effort to ensure fairness does not require it to second-guess business decisions; rather it must fairly assess how to share income for family and business purposes. In turn, this requires the court to consider evidence of legitimate business calls on pre-tax income before including an expense in corporate pre-tax income: Kowalewich at paras. 44 and 58 – 59.

[44]         As noted earlier, Baum reminds us that valid corporate objectives may differ from valid child support objectives and that the purpose of s. 18 is to allow the court to “lift the corporate veil” to ensure the payor’s stated income includes all money available for the payment of child support. Of course, “all of the money” is not equivalent to whatever might be the current figure for retained earnings on a balance sheet at a given time. That acknowledged, the children of a marriage are a parent’s primary responsibility. Their financial needs can become a greater priority than, say, growing the company. The nature and extent of that priority is a matter of balance and proportion. The court’s role is to assess the circumstances as would a reasonable parent informed of all pertinent financial and personal facts.

 

[45]         In this case, I find the respondent has established on a balance of probabilities that VIE, a relatively new business must retain earnings to, among other things, properly manage business fluctuations, float the company during times of illness, fund necessary equipment purchases, and cover deferred or otherwise pending and anticipated expenses, as detailed in the respondent’s affidavit and the letter from counsel, attached as Exhibit “E” to the respondent’s first affidavit.

[46]         These are legitimate business requirements. The current figure for retained earnings does not represent an uncommitted pool of income that can be drawn down for non-business purposes as if the respondent faced no constraints, or as if VIE’s earnings and productivity would not see any negative impact.

[47]         In this case, the children’s call on retained earnings is not for the necessities of daily living; rather, it is almost all for s. 7 expenses. The respondent has continued to pay basic child support for three children, two of whom are adults, who are either working or attending school. Such circumstances moderate the forcefulness of calls on the retained earnings. [48]         I fix the respondent’s annual Guidelines income at $105,000.

Vancouver Self Employed Support cases need to be resolved with a deft touch so the business, professional practice or development venture thrives. Any other result jeopardizes all family members at a time when they most need financial security. Contact us if you or your spouse own a family business, practice or venture to ensure you don’t sell yourself or your company short.

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Fort St. John and Dawson Creek MacLean Family Law Staff: Naomi Callingham and Charlene Courtman

Divorce is never an easy road, particularly when one spouse is difficult and does not wish to agree to any terms.

It takes a skilled family lawyer to help mediate to a win-win situation. Recently, Nassim Nasser used her negotiating skills on a difficult divorce case that led to a very positive outcome, and the family was able to avoid the expense and time going to family court.

Successful Mediation

This case included issues dealing with property division, parenting arrangements, child support, and spousal support. “This case had a difficult start, but we were able to mediate successfully for our client, and ultimately obtain a win-win for the entire family,” reports Nassim. When children are involved, we really want to see the parents work together to ensure the best outcome for the children.

Satisfied Family Law Client

The client summed up her experience with the MacLean Law office serving the Peace Region area including Fort St. John, Dawson Creek and Fort Nelson. “Ms. Nasser and the staff in the Fort St. John office were extremely helpful, knowledgeable, and friendly, and I felt they genuinely cared about me and my situation. Nassim was very quick to act when needed, and helped me reach an agreement with my difficult ex. I will be forever grateful to Nassim and MacLean Law for allowing me to move forward and start a new chapter with my children. Thank you.”

The staff at the Fort St. John family law office want to thank our client for sending us a lovely bouquet. If you have a difficult family situation, contact the experienced team of family lawyers at MacLean Law. Our staff can assist with court applications in Fort St. John, Dawson Creek, Fort Nelson and anywhere in the Yukon.

Mediation & Arbitration

Our highly trained, compassionate professionals are excellent resources to help parties to promptly and amicably settle family disputes calmly and discretely. Call us toll free at 1 877 602 9900 or request a consultation with a Fort St. John or Dawson Creek Family Lawyer.

The post Family lawyer Nassim Nasser exceeds expectations in difficult divorce case appeared first on MacLean Family Law.

Our Vancouver imputed income lawyers are pleased to explain a recent and important BC Court of Appeal case. The Vancouver Imputed Income Lawyers of MacLean Law note this new imputed income case reiterates the principle that spousal and child  support, is paid on what you can really earn, not what you are currently earning if you are underemployed.

Vancouver Imputed Income Lawyers And BC Spousal and Support

Vancouver Imputed Income Lawyers

Our experienced Vancouver imputed income lawyers know paying spouses cannot work beneath their earning capacity to pay less support nor can recipient spouses refrain from retraining or working to get more support. When someone isn’t working to their full potential and you want to obtain a fair spousal or child support award it pays to hire the top Vancouver Imputed Income Lawyers at MacLean Law.

We are BC’s largest family law firm and have 4 offices across the British Columbia and our Vancouver Imputed Income Lawyers deal with cases involving both underemployed paying and receiving spouses. We will focus on ensuring separated spouses are equally accountable to ensure proper support is paid and to ensure children are protected financially.

In Beissner v. Matheusik, released by the BC Court of Appeal this week, a father’s application to reduce spousal and child support was dismissed because:

• there was no material change in circumstances,
• there was a failure to make full disclosure by him and
• finally the father was underemployed and as such a higher imputed income was attributed to him.

Vancouver Imputed Income Lawyers Explain How The Court Decides Real Income

The BC Court of Appeal provided a tidy summary of the law on how a court may impute income to an underemployed  spouse even if their underemployment is not deliberate. The concept of imputed income and support is complicated and we have extracted the key parts of the decision and bolded the legal principles to enable you to get to the key parts quickly.

[30]         The judge then turned to the issue of whether income should be imputed to the father pursuant to s. 19 of the Guidelines, noting correctly that his task was to determine whether the father’s financial situation had materially changed from the order of September 24, 2012 (para. 36). He found that it had not, stating:

[37]      Imputing income for underemployment does not require a finding of bad faith on the part of the payor or deliberate avoidance of child support responsibilities, but only that the payor is not earning to capacity. To determine if a parent is earning to capacity, the following considerations must be taken into account: that parent’s age; education; experience; skills; health; and the job opportunities reasonably available. Persistence in unremunerated employment will not be regarded as an excuse. Similarly, a self-induced reduction in income does not justify the avoidance of child support obligations.

[38]      In the case at bar, Mick is a well-educated, experienced and capable businessman with substantial earning capacity. He is clearly respected in his field. In the material he provided me in support of this application, I note that he was the program committee member and speaker at the Urban Land Institute’s April 2014 meetings in Vancouver. He was featured on the panel focusing on the initiatives of successful resort developers. While I accept for the purposes of this application that the recession of 2008 had its strongest impact on the development and marketing of recreational properties, and that this sector has taken longer than residential and commercial properties to recover, Mick’s skills are transferable and I am satisfied he is making well below what his actual earning capacity is. As noted above, I am also satisfied that Mick is unreasonably deducting expenses from rental income thereby reducing his income for tax purposes. Further, I am not satisfied that Mick has made full disclosure of all financial information required. Finally, Mick made a determination to embark on a high risk, low income yield venture in 2012, immediately after being given an opportunity by this Court to be relieved of the immediate obligation to pay child support for a period of one year so he could catch up on arrears. His decision to do so is a curious one in light of what he knew about the nature and extent of his past and probable future child support obligations at that time. It is a factor I have considered in determining the amount of income to be imputed to him.

What Is A Material Change of Circumstances That Allows For A Change in Support?

(i)       Did the judge err in finding the father had not demonstrated a material change of circumstances?

[39]         A material change of circumstances is the threshold issue for varying a child support order. In L.M.P. v. L.S., 2011 SCC 64, the Supreme Court of Canada confirmed the legal test in Willick v. Willick, [1994] 3 S.C.R. 670 for the variation of a child support order, stating: [30]      In our view, the proper approach under s. 17 [of the Divorce Act] to the variation of existing orders is found in Willick [citation omitted] … [31]      Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.

[32]      That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). …

[33]      The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.

[41]         With respect, the difficultly the father has in advancing these submissions in support of his application are three-fold. [42]         First, in September 2012, Russell J. found that the father had not established a material change in circumstances to support his application for a reduction in his child support from that provided for in the Minutes of Settlement. Therefore, the only window for consideration of whether he had established a material change of circumstances in his application before Fitch J. was a narrow one of some 18 months. However, all of the evidence tendered by the father with respect to the decline in his financial circumstances arose before his September 24, 2012 application. On that basis, Fitch J. found, as it was open to him to find, that the father’s “financial situation was known to the court at the time of his September 2012 application” and it had “not materially changed since” (para. 36). [43]         Second, the judge found the father’s financial disclosure in support of his application inadequate and unreliable. On appeal, the father applied to adduce fresh evidence, presumably to shore up the basis for his submissions before Fitch J. However, having reviewed that material, I am unable to find that it meets the test for the receipt of such evidence as set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775-76. It is therefore inadmissible.

[44]         Third, the judge found that the father was underemployed. In reaching that finding, the court did not have to conclude that the father was intentionally evading or minimizing his child support obligation or that he was intentionally underemployed or unemployed. It only had to determine what income the father was capable of earning: Barker v. Barker, 2005 BCCA 177. The test for a finding of underemployment from Donovan v. Donovan, 2000 MBCA 80, was adopted by this Court in Watts v. Willie, 2004 BCCA 600 at para. 16, and followed in McCaffrey v. Paleolog, 2011 BCCA 378 at para. 46:

[16]      In Donovan v. Donovan (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80, Madam Justice Steel gave the judgment of the court and wrote at para. 21:

1. The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income, “Determination of Income, Disclosure of Income”, Child Support in Canada, Canrab Inc., August 3, 1999).There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor” (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.))
2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations
3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment
4. Persistence in unremunerative employment may entitle the court to impute income
5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations
6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

The top rated MacLean Law Vancouver Imputed Income Lawyers are pleased to meet with you to discuss your options if you are frustrated by your spouse failing to work to their capacity or if you feel your spouse is barking up the wrong tree in unrealistically trying to inflate your income for spousal support.

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Family Interim Order Appeals Require Leave

Lorne MacLean,QC – BC Family interim appeals lawyer

Our Family Interim Order Appeals family lawyers know that BC family law is clear that interim are orders are designed to be made promptly and to last only until a full trial on the issues can be heard. At trial a judge hearing the case has the benefit of watching witnesses on the stand, determining their credibility and observing the family law parties under cross examination. For this reason Family Interim Order Appeals are rarely successful and you need approval or “leave” from the Court to even be allowed to proceed with such an appeal. Parties are expected to set the matter down for trial promptly and can often get a trial date earlier than any Appeal would be heard on the disputed interim order. In rare cases leave to appeal an interim order will be allowed. In this week’s case the BC Court of Appeal reiterated the law that needs to applied for a successful leave to appeal in a Family Interim Order Appeals case.

Protection orders are now determined to be interim orders according to a recent BC Appeal Court decision of S.H.F.N. v. A.B.N that granted leave to appeal by a spouse who was the subject of a protection order against him that was to last for 1 year. This is the first case dealing with the emotion laden issues relating to protection orders where one spouse says they are fearful for their safety and the other spouse often says this fear is groundless or exaggerated.

[6]             Section 183 of the Family Law Act provides that a protection order, unless otherwise ordered, expires one year from the date it is made. Section 183 also provides that relief in the nature of a protection order may be the sole remedy sought in court proceedings, or may be sought in conjunction with a claim for other relief.

[7]             It is well established that interim orders in family proceedings are primarily designed to maintain the status quo and to provide short-term solutions:  Fitzgibbon v. Fitzgibbon, 2014 BCCA 403; Johnson v. Jessel, 2012 BCCA 393; and Aleong v. Aleong, 2013 BCCA 167. [8]             The term “interim” has two connotations. One is “time limited” and the other is “interlocutory”. In both senses I consider that the term “interim relief” connotes something short of permanent relief and something short of the entire relief sought in a proceeding. [9]             In this case the protection order is subject to further extensions by the court, is not the entire relief sought in the litigation, and is limited. In my view it falls squarely within the term “interim relief” in Rule 2.1. This leads me to conclude that leave to appeal is required. [10]         Having said leave to appeal is required, should it be granted?  The answer is yes, in my view. I have not been provided with reasons for judgment in respect to the protection order, but I am informed by the parties that the reasons of the judge are brief and refer to the result of the Hague Convention hearing. While it is rare for this court to interfere with an interim order dealing with the custodial arrangements for a child or children in family litigation (T.N. v. J.C.N., 2013 BCCA 432), in these circumstances it seems that the protection order and the Hague Convention order given by Mr. Justice Affleck are intimately linked. That being so, I consider it plain that the interests of the children and the parties, and the interests of justice, favour the two matters proceeding together through our court.

If you have questions about Family Interim Order Appeals you need to see a lawyer immediately as strict deadlines apply. Special rules apply to Family Interim Order Appeals and the test to succeed is a strict one. Our lawyers are experienced in the Supreme Court of canada and the BC Court of Appeal and have a winning track record so we can give you a straight answer if you have a Family Interim Order Appeals question. Contact us across BC at 1-877-602-9900 to set up an appointment to me with us in any of our 4 offices.

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BC Family Law Mistakes We Can Help You Avoid

People often find BC family law complex and confusing. There are family law rules and deadlines and worst of all time limits after which valid claims for support and property division are barred. Our family lawyers can easily help you Avoid BC Family Law Mistakes.

John Nelson Vancouver BC family lawyer

We can meet with you quickly and help you avoid the pitfalls and traps that can stymie your claims. Don’t procrastinate when help is readily available. Be a skeptic and ensure your rights are fully protected by contacting us now toll free across North America 1-877-602-9900. You can Avoid BC Family Law Mistakes by simply meeting with a quality family lawyer.

The recent Supreme Court judgment of Madam Justice Humphries in Carreiro v. Carrerio, 2015 BCSC 714 is a good reminder for those ex-spouses seeking retroactive spousal support (and challenging an old separation agreement) to avoid five common mistakes. Or put it another way, here are the five things you must do when dealing with your family law matters to avoid BC family law mistakes:

1. Act on your claim promptly.
2. Know about time limits.
3. Tick the right boxes on the court forms.
4. Know the court rules.
5. Get legal advice.

In Carreiro, a wife from a 14 year marriage sought to set aside a separation agreement which she signed thinking that her and her husband would reconcile and be of no effect. Sadly, that did not happen and the circumstances that the parties thought existed at the time of the agreement, that the wife would run a restaurant in Brazil that was her property through the division of family assets, was not realized. Separation Agreements can be reviewed, but it is essentially that this been done before any time limitation periods expire. She did not get early and critical legal advice that would have helped her avoid BC family law mistakes.

So often, people start BC family law claims and then let them sit there for years. By doing so, these people have potentially given up tens of thousands of dollars in retroactive support because they did not act on their claim in a timely manner. In Carreiro, Madam Justice Humphries held that the claimant stopped her case because her ex-husband would not produce documents was not an adequate explanation for the delay in making her claim for spousal support, which she did not do until years after filing her Notice of Family Claim. If you’re not sure that you have a spousal support claim, it is better to make the claim right away rather than adding it years later. More importantly, a good lawyer will enforce document production orders including, if necessary, making a contempt of court application, which helps immensely with keeping the legal process on track for trial.

There are time limits in the new Family Law Act. Parties have two years from the date of separation, if they are in a marriage-like relationship.  There is also a two-year time limitation period for property division claims under the Family Law Act. Immediately consult with a lawyer if you don’t know if the time limitation period has started in your case. There is nothing worse than to have a good legal case that you failed to file on time. Promise yourself you will get legal advice that will let you avoid BC family law mistakes.

The Notice of Family Claim, a routine BC Supreme Court form, can be a little intimidating for some people. Ticking the right box, especially when it comes to whether your claim for a specific thing in under the Family Law Act or the Divorce Act. In Carrerio, the court observed that a married person is under no time limits to make a spousal support claim under the Divorce Act, whereas the same is not true under the Family Law Act. Parties who were married may make a spousal support claim long after the marriage had ended under the Divorce Act, but delay in making that claim may forfeit the party the right to retroactive support. Checking the wrong box on the Notice of Family Claim form could place you in a position where the court asks you to start from scratch as you are out of time to make a claim under the statute whose box you did tick, but not of time under the box you didn’t tick.

Carreiro is another example in a long line of cases where an unrepresented party had difficulty in securing relief because of a failure to follow the court rules, which govern court procedures. Once again, there is nothing more frustrating than losing your family law case because you did not know how to navigate the Supreme Court Family Rules.

While brings to my last point. Don’t know the court rules? Not familiar with limitation periods in the Family Law Act? Not sure if you’re claim is under the Divorce Act or the Family Law Act? These legal nuances are not something that non-lawyers would know. This is why it is crucial to get legal advice. Legal advice can alert you to limitation periods, the strength of your claim, statutory bars to claims, and other important information in assessing whether or not to pursue a claim or whether or not to defend against a claim. The MacLean Law Group is long experienced in helping people get what they are owed and also ensuring that people don’t pay more than the law obligates them to. We can also advise you if a separation agreement should be reviewed or alternatively, whether or not you have a good case in defending against such a review. Knowing your legal rights is essential to protecting your economic interests, which is why obtaining legal advice early in the process is essential to safeguarding your interests.

Our BC Family Law lawyers act across Canada from our 4 offices in BC in downtown Vancouver, South Surrey, Kelowna, Fort St John and Dawson Creek and in Winnipeg Manitoba. We also often appear in Calgary, Alberta for our medium to high net worth family law clients. Call us right away at 1-877-602-9900.

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Tax  Implications of  Vancouver retroactive lump-sum support

Have you or someone you know been ordered to pay a retroactive lump-sum support? Our Vancouver Lump Sum Support lawyers know the rules that apply to this area of family support law such as interest on late payments, reductions for loss of tax deductions and inclusions, and for future lump sum support calculations discounts for death, disability, remarriage, job loss, recipe of windfalls and remarriage to name a few.

Spencer MacLean, MacLean Law Vancouver Spousal Support Lawyer

If your Vancouver Lump Sum Support lawyer and you are unaware of these specialized factors you could really suffer financially. Hire our top rated Vancouver Lump Sum Support lawyers today to protect yourself whether you are paying or receiving spousal or child support.

Vancouver spousal support and Vancouver Lump Sum Support lawyer Spencer MacLean, of MacLean Law provides a breakdown and analysis of the recent decision from the Ontario Superior Court of Justice in Hume v. Tomlinson, 2015 ONSC 843.

Remember spousal support payments are subject to tax deductions and tax inclusions whereas child support is a non deductible payment for the paying spouse and a non taxable payment in the hands of the parent who receives child support.

The  recent Hume v. Tomlinson case explored the tax implications of retroactive lump-sum spousal support awards. Hume v. Tomlinson focusses on whether the lump-sum support award should be reduced to reflect tax consequences that impact both the payor and recipient. Payors ( the spouse who pays support) get a tax deduction for paying periodic spousal support and receiving spouses must declare it as income on their tax returns. Different rules apply to lump-sum payments ( 1 time payments) than to monthly payments.

Facts

Madam Justice Toscano Roccamo of the Superior Court of Justice ordered in December of 2014 that the Respondent (Husband) to pay Applicant (Wife) retroactive spousal support from March of 2012.

The Court referred to the Spousal Support Advisory Guidelines (the “SSAG’s’) and assigned the quantum to the mid-range value of spousal support. Additionally, it was ordered that the parties will offset any over-payment of child support by the Respondent against the amounts owed to Claimant in spousal support.

The Court’s Decision

While periodic spousal support that is paid on a monthly or yearly schedule is considered taxable income to the recipient and tax deductible for the payor, lump-sum spousal support awards are not. The Court in this case agreed with the Respondent that the tax implications in relation to lump-sum spousal support that reference the Spousal Support Advisory Guidelines must be taken into account when determining the appropriate value of support.

When determining appropriate quantum for support payments the SSAG relies on computer generated values from DivorceMate which calculate the net amounts of periodic spousal support payable.  However, DivorceMate software does not address retroactive lump-sum payements.

One way to resolve this issue would require the parties to apply to the Canada Revenue Agency (the “CRA”) for an assessment on the proper tax adjustment. However, the Court agreed with the Respondent in this case that the CRA would likely benefit the support recipient and not the support payor. The Court further held that relying on the parties to make an application to the CRA would not guarantee a fair adjustment between the parties.

The Court decided to reduce the value of the arrears owing by the Respondent in this case. The original value of the support arrears was $14,363.02.  The Respondent’s marginal tax rate was 37% therefor the value was reduced by 37% for a total of $9,048.70. The Court’s decision in Hume v. Tomlinson is in line with the approach adopted by the courts in various other cases.

As you can see, it is not unusual to receive a tax discount for retroactive lump-sum spousal support awards. What can be difficult is determining what percentage the award should be reduced by. In Hume v. Tomlinson the Court opted to use the support payor’s marginal tax rates. Other cases have shown the Court can use either the support payor or receipient’s tax rate or the average rate between the parties.

Vancouver Spousal Support Lawyers MNP Tower office of MacLean Law

Unlike lump-sum support into the future there is no argument for additional discount for future contingencies such as job loss, disability or death – we will discuss lump sum support moving forward in future blogs.

Ideally family law clients will see a top lawyer immediately to ensure spousal and child support is paid promptly so a retroactive claim years later with all the stress and confusion that goes along with it is avoided. Let our Vancouver  Lump Sum Support lawyers explain  the rules and develop a strategy for you. Call us at 604-602-9000 or click here to meet with us.

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Catallo v. Catallo, is an interesting July 2015 BC child support case.  BC Post Secondary Education Child Support cases often involve a child older than 19  and these cases are often described as “over the age of majority” child support cases.

Spencer MacLean, MacLean Law, Post Secondary Education Child Support lawyer

Catalo  discusses  what happens when a child lives away from home and attends university when a Post Secondary Education Child Support claim is advanced in court.

Our BC Post Secondary Education Child Support lawyers routinely handle these child support cases. Our  MacLean Law Post Secondary Education Child Support lawyers act for both paying and receiving spouses and even  assist in cases where support is paid directly to the child. Our reputation is stellar and we are available to help you across BC. Call us toll free 1-877-602-9900 to meet with us.

Child Support – Law

[35]         Support for a child under the age of majority is determined by the presumptive rule in s. 3(1) of the Guidelines, which is the amount stipulated in the Guidelines table plus any amounts determined under s. 7 for special and extraordinary expenses. [36]         Once a child has reached the age of majority, the Guidelines provides two bases on which to calculate child support:

3. (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[37]         The purpose of the table amount in the Guidelines is to assist the payee parent with basic costs for the children in their care, such as food, shelter and clothing. When a child commences post-secondary education, they incur additional expenses including tuition, books and when attending an institution away from the family home, expenses for room and board. Those expenses are contemplated in s. 7(1)(f) of the Guidelines, which stipulates that post-secondary expenses are to be shared between the parties in a manner proportionate to their income. When a child is attending post-secondary and living away from home, they will incur greater post-secondary expenses in paying for residence and the costs of living, but the custodial parent no longer has to maintain the household for the child and consequently the basic costs contemplated by the Guidelines table amount are reduced.

Post Secondary Education Child Support Rules

The Supreme court reviewed and summarized the correct way to share post secondary educational costs when a child lives away from home. The court looks at a reasonable living budget including the tuition, books and housing and food costs in BC Post Secondary Education Child Support cases.

[38]         The jurisprudence has dealt with the issue in the following manner. In Neufeld v. Neufeld, 2005 BCCA 7, the court said that for a child over the age of majority attending a post-secondary institution and living away from home, support should generally be determined under s. 3(2)(b) of the Guidelines. In general, it is inappropriate, for example, to award the table amount of support and then add a proportionate share of post-secondary expenses because this approach would not take into account a proper contribution to be made by the child through student loans and part-time work or the reduced financial burden on the custodial parent in maintaining the household. [39]         In L.H.M.K. v. B.P.K., 2012 BCSC 435, Mr. Justice Brown accepted the proposition that where s. 3(2)(b) of the Guidelines is applied to an adult child attending post-secondary schooling who is living away from home, courts generally suspend child support for that child when the child is away from home. In turn, courts order each party to pay their proportionate share of the child’s education expenses. Children have an obligation to make a reasonable contribution to their education as well: Wesemann v. Wesemann, [1999] B.C.J. No 1387 (S.C.) at para. 39. [40]         For a child under the age of majority attending post-secondary and living away from home, the table amount must be awarded, but it may be appropriate to reduce a s. 7 award to account for any contribution by the child and the reduced burden on the custodial parent: P.R.M. v. B.J.M., 2012 BCSC 1795.

VANCOUVER SUPPORT LAWYER LORNE MACLEAN, QC

If you want to know what your obligation and your child’s responsibilities are to pay for their post secondary education, call us. Different approaches to how support is paid apply when a child lives away or away from home for part of the year. Part time jobs, RESP’s, trusts, loans, grants and scholarships amongst other factors all come into play.

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Deciding What Court Should Determine a Vancouver Mandarin Overseas Family Property Case Is Critical.

Our Vancouver Mandarin Chinese family property lawyers and Cantonese speaking family asset lawyers regularly handle inter-jurisdictional support and international family property and debt division cases. Our experienced team of Vancouver Mandarin  Chinese family property lawyers know how to deal with complex cases involving large overseas family property holdings. When Mainland Chinese family property or Hong Kong family assets are involved, a coordinated approach involving leading lawyers inside and outside of BC is often required to lead to success in cases involving our Vancouver Mandarin Overseas Property Lawyers. Click here for our Chinese Language site.

MacLean Law Vancouver Office Mandarin and Cantonese line 604-682-6466

Vancouver Mandarin Chinese Family Property Cases With Overseas Assets are Complex

Our Asian divorce and family law clientele, some of whom have resided in Vancouver all their lives and some of whom are landed immigrants or permanent residents often have significant real property, art, companies and savings both inside and outside of Vancouver, BC. Often the overseas assets are located in Mainland China in the form of lucrative factories and operating companies that generate large sums of income, or in substantial real estate holdings in China, Hong Kong and elsewhere in the world. When the stakes are high you cannot afford to make a jurisdictional mistake. As you will see below the rules are confusing and require a number of complex steps to determine jurisdiction that our skilled Vancouver Mandarin Chinese Family Property lawyers can guide you through.

赵辰律师加入MacLean Law，温哥华家庭法律师事务所

Conflict of Laws and Jurisdiction Involving Overseas Family Property Cases

The first issue that a multi-jurisdictional Chinese family property case may involve, is whether a Vancouver or BC family law judge has or should should accept jurisdiction to decide a Mandarin family property division or Cantonese divorce case. You need a top team of  skilled Vancouver Mandarin Overseas Property Lawyers from the start to create a strategy for or against a BC Supreme Court Justice deciding British Columbia is the right place to deal with the Vancouver Mandarin Overseas Property dispute.

Our Chinese speaking family lawyers – led by Lorne MacLean, QC, handle numerous high net worth and income interjurisdictional, multijurisdictional and international family law claims. As Vancouver Mandarin and Cantonese speaking family lawyers we often have to deal with property located mostly in BC or mostly outside BC. These challenges require a coordinated approach that will often involve lawyers in BC, China, Hong Kong and elsewhere to ensure worldwide property is fairly divided. It may involve unequal division of property in BC to secure a fair division and spousal and child support to ensure an overseas payor’s obligation is secured.

Conversely, when there is no proper connection by the spouses to BC or most of the family property, income or the spouse’s children have a less secure connection to BC, our courts may not have jurisdiction to decide these Asian high net worth property division cases.

When Will A BC Court Divide Family Property Outside BC For BC Mandarin and Cantonese Speaking Clients?

In many cases, our Mandarin speaking family law clients have millions of dollars in net worth accumulated through their joint efforts. When the stakes are so high our mandarin speaking Asian high net worth clients want to ensure that the jurisdiction that decides the case is the most appropriate.

Mandarin Chinese family property lawyers led by Lorne MacLean, QC at MacLean Law

Before a Vancouver Supreme Court Justice will take charge of a family property division case involving overseas assets in China or Hong Kong or elsewhere our Mandarin speaking family law lawyers and Cantonese speaking property division lawyers have to determine if BC has jurisdiction to decide the family property case. Our Vancouver Mandarin Chinese Family Property lawyers will summarize the complex law on the issue of jurisdiction

BC Family Law Act 106(2) provides the rules to help the court here determine when it may make orders dividing that property between those people under Part 5:

(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:

(a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim;

(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court’s jurisdiction under this Part;

(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;

(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.

So What Does Substantial Connection To BC Mean?

Section 106(3) defines substantial connection for purposes of BC assuming control over deciding the case:

(3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:

(a) property that is the subject of the proceeding is located in British Columbia;

(b) the most recent common habitual residence of the spouses was in British Columbia;

(c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.

Can A Judge Who Has Technical Jurisdiction To Decide the Case In BC Decline To Do So?

Even after the test for exercising jurisdiction in a Vancouver Mandarin Chinese family property case has been met, the BC Court can still decide to let another judge elsewhere in the world take charge of the case.

The rules for declining to take charge of the  case in BC include the following factors:

Section 106(4) says that the court can refuse to make orders for the division of property and debt. Section 106(5) says what the court must take into account in deciding to refuse to make orders:

(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:

(a) the interests of the spouses;

(b) the relative convenience and expense for the spouses and their witnesses;

(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;

(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;

(e) the extent to which an order respecting property or debt

(i) made in another jurisdiction would be enforceable in British Columbia, and

(ii) made in British Columbia would be enforceable in another jurisdiction;

(f) the fair and efficient working of the Canadian legal system as a whole;

(g) any other circumstances the court considers relevant.

Contact our Asian Wealth Preservation and Asset Protection team 财富和资产保护 – Wealth Protection if you have an issue involving Vancouver Mandarin Chinese family property issues. Our Mandarin and Cantonese speaking family law lawyers are ready to assist you. Call our Mandarin and Cantonese language dedicated receptionist today at 604-682-6466.

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Don’t Miss Out On Million Dollar Pensions!

Lorne MacLean, QC just chaired an excellent Pacific Business Law Institute conference for lawyers, accountants and financial planners on “the Grey Divorce” and explained a number of high net worth family property division issues. One of the hot topics at the conference was BC Supplemental IPP Pension Plan Division as well as the pitfall laden area of family pension division.

Our BC high net worth divorce and BC supplemental IPP pension plan division lawyers know that certain types of high income employees can contribute to more than just their basic employment pension. Our  BC Supplemental IPP Pension Plan Division lawyers also know that self employed spouses have access to Individual Pension Plans. Sadly, many times upon separation, these lucrative pensions are forgotten or  ignored. If our spouse earns over $100,000 or owns a profitable business you need to search for these pensions. Hire a lawyer who knows about these specialized plans to avoid missing out on your fair share. Call us toll free 1-877-602-9900.

Spencer MacLean, Vancouver BC Supplemental, IPP Pension Plan Division Lawyer

Pensions Can Be The Most Valuable Family Property

Pensions are often the largest single asset spouses have accumulated and these additional plans can have values of in excess of 1 million dollars. Upon separation it is critical that a Form P1 be filed immediately and your lawyer should request in writing full details of all pensions and ensure no beneficiary changes or elections occur before proper division. BC supplemental IPP pension plan division cases are tricky so make sure you hire a lawyer who deals with these matters routinely.

Contribution Statements Can Be Misleading

Watch out for errors in using a contribution statement which can dramatically understate the real value for purposes of a fair BC Supplemental IPP pension plan division.

Failing to hire a BC Supplemental IPP pension plan division Lawyers can have catastrophic results. Similar errors can be made for division of  business owners IPP.

What Is A Supplemental Pension?

Supplemental pension plans for senior executives and high income earners are very popular and becoming routine for high net worth spouses. The reason for this is the limit on RRSP contributions for individuals in the higher income brackets because of the legislative ceiling imposed by the RRSP and pension limits. Supplemental pension plans are a way to increase the pension contributions.

Our new Family Law Act has specialized rules for diving these lucrative pension plans and you need a BC Supplemental, IPP Pension Plan Division Lawyer who knows what they are and how to get them together with any IPP pension plans properly valued:

Section 119 Supplemental pension plans

• Section 119 provides detailed rules governing the division of benefits that are supplemental to benefits in a local plan.
• Under the Family Relations Act, benefits in a supplemental plan are divided by the same rules that apply to extraprovincial plans – the former spouse is entitled to a share of the income stream when it becomes payable.
• The problem with this approach is that it is usually not possible to provide the former spouse with any security for that share and payment typically ends when the member dies.
• Under the Family Law Act, in contrast, if the pension has not yet commenced, the former spouse is entitled to take the share as a separate pension. If the pension has already commenced, then the same rules under section 117 that apply to pensions being paid under a local plan apply. It is also open to the administrator to consent to using any of the rules that would apply had the benefits been under a local plan.
• The spouse’s share of the supplemental benefits is subject to the same terms and conditions as the member’s share. If the member’s share is adjusted, suspended or terminated, the spouse’s share is adjusted, suspended or terminated as well. In these cases, recourse is provided in section 120.

The Family Law Act came fully into force on March 18, 2013.
This document was developed by the Ministry of Justice to support the transition to the Family Law Act. It is not legal advice and should not be relied upon for those purposes.

• The section adopts the BCLI Report recommendation.

Meet with a skilled MacLean Law BC Supplemental, IPP Pension Plan Division Lawyer today to protect your share in what could be your largest family asset.

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我们的温哥华亚洲家庭法律师和资产保护和财富保值团队经常处理价值百万以上的家庭财产和债务划分案件。我们的专业领域涉及在BC省内与外的资产及家庭。我们的律师团队能说流利的普通话和广东话。他们很了解亚洲文化和温哥华的最重要的人口群体之一的文化与想法。联系我们，让您与家人得到充分的保障。

我们的律师可以与您用您自己的语言交流， 更好地为您解释家庭法相关的概念和法规，方便您完全了解BC家庭法和你在离婚时的合法权益。我们会清楚简介为您解开疑团并纠正任何认识误区。

我们温哥华地区的华语律师经常处理多地区和国际化的家庭财产和债务纠纷案例。我们的华语律师团队经验丰富，完全胜任处理复杂的案件，包括涉及庞大海外资产的家庭。当涉及中国大陆或香港的家庭资产时，我们的律师团队会及时的领导和协调中国大陆或香港的本地律师，通过一致的方式来解决各种案例。

我们了解并会充分的考虑到多个司法管辖区中各地的税收及文件披露问题。我们与中国最大的律师事务所有着密切的合作，以协助我们的中国大陆客户在BC省可以获得全方位的法律意见。

我们温哥华的华人家庭律师还可帮助我们的客户进一步保护他们给孩子或新的配偶在温哥华或BC其他地方购买的资产。我们明白在中国文化中，对于子女的慷慨赠送会导致问题，特别是当双方家庭对于小两口的金钱帮助不平等的情况下。

新BC省家庭法对于海外产业的规则

我们BC省的新家庭法法案扩大了我们法院的管辖权。部分规则涉及到在BC省外以及海外居住和工作的人。我们的新法案考虑到了人们结婚或生活在加拿大以外的地方。我们的温哥华亚裔家庭法律师熟悉最新的法律和处理海外财产分割的规则。

BC家庭法第5部第6节s. 109（ 2）章节允许BC省法院处理涉及在BC省和中国大陆，香港或其他海外地方的家庭和除外财产：

s. 109（ 2）对于划分省外财产，最高法院可以在配偶申请后可作出做一个或多个以下命令：
a) 与其割分省外财产，

i.  用BC省范围内的财产或家庭债务替换在省外的资产，或
ii.  命令拥有省外财产的合法所有权的配偶向另一方支付赔偿；

b) 如果法庭认为其命令会在省外的司法管辖区被执行，

i. 保留外省财产
ii.  提供省外财产的合法所有权
iii.  命令拥有省外财产的合法所有权的配偶向另一方配偶转让全部利益或部分，或
iv.  提供与省外财产相连接的任何其他事项；

c) 如果法庭认为其命令会在省外的司法管辖区被执行，提供非金钱补救。

我们的华裔离婚律师和家庭法律师可以帮助您处理一下类型的案件：

• 卑诗省和中国大陆的离婚问题，
• 温哥华和中国大陆或香港的子女抚养费，
• 温哥华和中国内地或香港配偶赡养费，
• 温哥华和中国大陆或香港的家庭财产分割问题，涉及在BC省，中国内地或香港的公司，及海外注册公司，海外投资和银行帐户，以避税为目的的海外公司资产，
• 财产保全和资产冻结令，
• 等等。

作者: 赵辰  

欢迎拨打我们的温哥华办公室中文热线 604 682 6466 咨询专业的律师。 MacLean Law律师事务所为BC省顶级的家庭法事务所，让我们的团队为您排忧解难！

*本部落格的信息仅供参考，不应被视为读者与作者建立了客户关系或作者提供了法律意见。读者应向赵律师咨询获取专业法律意见。

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Interim Parenting Time Orders

The skilled and experienced Interim Parenting Time Lawyers at MacLean Law have handled hundreds of these crucial cases as BC’s largest family law firm. Proper preparation early on can lead to positive results in obtaining Interim Parenting Time Orders. Our family law associate MacLean Law’s, Naseeb Kahlon provides this great summary to ensure you move forward as a key part of your child’s life.

Get It Right At The Start

In a high conflict separation/divorce many issues must be decided in the short term until final orders are made at your trial. Once the court proceeding has started, you and/or your spouse will need to make various interim applications to court to sort out important issues like parenting time in the short term. The period between starting your court action to the trial date can last for more than a year. Thus the Interim Parenting Time Orders made in these applications can have a lasting impact on your relationship with your children and can affect the Final Parenting Time Order made at your trial. So it’s very important that you hire our Vancouver Parenting Time Lawyers to help you get fair Interim Parenting Time Orders that will lead to fair orders at your trial.

If You Disagree You Can Appeal

In some cases, it is possible to appeal Interim Parenting Time Orders. The test for determining whether an Interim Parenting Time Order can be appealed is confirmed in the recent BC Supreme Court decision of P.T. v. K.T. 2015 BCSC 2021:

[19]         The generally accepted test on an appeal of a Master’s interim order is that it will not be set aside unless it is clearly wrong: Abermin Corporation v. Granges Exploration Ltd. (1990), 45 B.C.L.R (2d) 188 at 193 (S.C.). [20]         This “clearly wrong” test is not applied in cases of interim parenting where the decision raises questions vital to the final issue and creates a parenting arrangement that will directly impact the issues to be resolved at trial. In these circumstances, a rehearing is the appropriate form of appeal: Abermin Corporation at 193. [21]         The approach adopted by Mieklam J. was approved in Cocco v. Cocco, 2000 BCSC 189 by Bennett J. where she said: [15]      The test upon a review of an interlocutory order of a Master is that the appellant must establish that the Master was “clearly wrong” in the exercise of his or her discretion. I agree with the submission of counsel that this test does not always apply in custody and access situations. [See Thibeault v. Ravelo (06 August 1999) Prince George Registry #05543 (B.C.S.C.)] In Thibeault, Meiklem J. held that these issues must be reviewed on a case-by-case basis to assess if the interim order will have a direct bearing on the disposition of the issues at trial, bearing in mind the issues and the length of time that the interim ruling will be in place. [22]         I accept that it is appropriate to perform a review to assess if the interim order will have a direct bearing on the disposition of the issues at trial, including a consideration of the length of time the interim ruling will be binding on the parties. If the parenting arrangement approved by Master Taylor will impact the disposition of the issues at trial, I would revisit the underlying claims of the parties. It would be proper to allow the appeal if I am satisfied that his decision is not in the best interests of the children and might have long term implications for their future care. [23]         Conversely, if I conclude that the order under appeal will not likely impact the trial outcome, then for the reasons described in Thibeault and Cocco I should consider the appeal in light of the “clearly wrong” test.

Interim Parenting Time Orders lawyer Naseeb Kahlon of MacLean Law 604-602- 9000

In P.T. v. K.T., the court did not allow the mother to appeal the interim order increasing her spouse’s parenting time because the court did not see the increase as having a direct bearing on the disposition of the issues at trial and the Master was not found to be “clearly wrong” in the exercise of his discretion in making the Interim Parenting Time Order.

The time you spend with your children during this period is crucial for you and them. Call our highly skilled Vancouver Parenting Time Lawyers to get fair Parenting Time Orders from the get go and ensure fair Final Parenting Time Orders at trial. Contact us at 604-602-9000.

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MacLean Law Vancouver Child Support Lawyers

In emotionally trying times like divorce/separation, it can be easy to miss out on little things that seem trivial at the time, but have a huge effect on the outcome of your settlement. Paying attention to the nitty-gritty details can make a world of difference in getting you what you are entitled to. Our Vancouver Child Support Lawyers are skilled at looking after every detail to make sure you get the best outcome possible. Contact us immediately to protect your child’s future.

Vancouver Child Support Lawyers MNP Tower office of MacLean Law

In the recent case of Hankey v. Hankey 2015 BCSC 2076, a wife made an application to court to correct a consent order regarding the commencement date for Child Support from her husband. If corrected under Rule 15-1(18) of the Supreme Court Family Rules, the wife would get 2 additional years of Child Support.

Rule 15-1(18) of the Supreme Court Family Rules states:

Correction of orders

The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter that should have been but was not adjudicated on.

Due to the wife’s weak application, the court did not rule in her favour and she lost out on receiving 2 additional years of child support. Call our Vancouver Child Support Lawyers to avoid this problematic situation.

Here’s what the court had to say:

[16]        In this case, the evidence of one of those negotiating parties, counsel for Mr. Hankey, is uncontradicted other than by the other objective evidence that I have already referred to. At a minimum then, there appears to have been some misunderstanding between the parties and their counsel about what had been agreed to. Such a misunderstanding does not constitute a “slip” or error, does not engage Rule 15-1(18) and, as such, does not give rise to a basis to amend the language of the Order.

[17]        I should also note that counsel for Ms. Hankey did not argue that the Order contained any “omission”, or that the Order should be amended to provide for a “matter that should have been but was not adjudicated on”, so as to fall within the other branches of Rule 15-1(18).

[18]        The burden of proving that the June 1, 2016 date in the Order was a “slip” or an error rests with the applicant. In the present circumstances, I do not consider that that burden has been satisfied and, accordingly, her application is dismissed.

[19]        Normally, the cost of this application would flow to Mr. Hankey. In the present circumstances, it appears that counsel for Ms. Hankey incurred unnecessary or unreasonable effort, delay, and expense in seeking to advance this application. Accordingly, I consider that each party should bear their own costs of the application.

Make sure you hire someone that knows what they are doing to avoid this unfortunate situation. Our Vancouver Child Support Lawyers know what to look for in these matters. Don’t wait another day and call our Vancouver Child Support Lawyers at 604 602 9000.

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BC FAMILY LAW PROTECTS TAIWAN SECRET SAUCE

A new BC Supreme Court decision has recognized that a family business owned and operated by the husband’s parents is not a family asset subject to division between the husband and wife. Our top family lawyers won a similar case involving a valuable family business that was relied upon in this case. Contact us for more information.

In JL v. BL 2015 BCSC 2052 one of the main disputes concerned a family business: a cash-only restaurant specializing in a pork dish marinated in a mixture of Chinese spices. The husband’s father learned the process for the pork marinade, including the recipe of spices, many years ago in Taiwan and kept the secret of this prized sauce from everyone including members of his family.

James Cudmore, Vancouver Family Trust Lawyer

The restaurant was owned by a company, and the true ownership of the company was in dispute at the BC Family Law trial:

1. The shares of the company were registered to the husband;
2. The husband had, long before the divorce proceedings started and shortly after he acquired the company’s shares, signed a declaration of trust, declaring that he held the company’s shares in trust for his father;
3. On its face, and according to the family, the effect of the structure was that to the outside world the husband was the owner of the company, but the true owner of the company was the husband’s father;
4. The accountant who set up the trust declaration testified that he understood that the husband held the shares in trust for not just the husband’s father, but in fact for both of his parents. The trust declaration being only in favour of his father reflected Chinese cultural norms;
5. The wife alleged that trust declaration was a sham – that the husband did in fact own the company and therefore the restaurant.The BC Supreme Court Trial Judge summarized the principles of the three types of trusts commonly seen in BC Family Law: Express, Resulting, and Constructive, citing the recent case involving MacLean Law Xu v. Hu 2015 BCSC 1400 (where a family business was similarly protected, although the case is appealed on other grounds):
   “[a] trust may be created in one of two ways: by intention to settle property by way of a trust or by imposition of law to secure a just result”.

   Trust law is extremely complicated, particularly in the context of BC Family Law. We strongly encourage you to seek legal advice to protect your family business even if you believe your son or daughter’s marriage will stand the test of time. Our MacLean Law family law department is BC’s largest with 17 lawyers working hard for our clients in over 4 offices across BC located in downtown Vancouver, Surrey, Kelowna and Fort St. John and we are fluent in Mandarin, Cantonese, Farsi, Punjabi, Hindi and Urdu and we handle Asian high net worth, South Asian high net worth international property and support disputes. Call us toll free at 1-877-602-9900 or request a consultation today.

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Our Surrey Punjabi family lawyers understand the importance of Punjabi prenuptial agreements and Punjabi marriage agreements. Surrey Punjabi marriage agreements are very common in British Columbia. We note that these agreements are not common in India and indeed the Indian government is now in the process of making changes to the law in India to permit these agreements to be valid.  In BC, you can enter into a Punjabi prenuptial or marriage agreement by calling our Surrey Punjabi fluent family lawyers at 604-576-5400.

Why Does It Make Sense To Have A Punjabi Marriage Agreement?

Surrey Punjabi family lawyers Naseeb Kahlon of MacLean Law

Younger Punjabi family law clients understand the need to try to establish guidelines for division of property in the event their marriage fails. Our skilled and culturally sensitive, Surrey Punjabi family lawyers and Punjabi prenuptial agreement lawyers routinely draft, review, enforce and if required seek to vary Punjabi marriage agreements.

Whether you are entering your first Punjabi marriage, Punjabi “marriage like” relationship, or you are “re-partnering” by remarriage, you should consider entering into a valid Punjabi prenuptial or marriage agreement. ONLY Spouses who enter their relationship without significant assets or debts and who are happy to share assets and debts acquired during their relationship as provided by the FLA do not need to enter into an agreement.

Everyone else should consult our Surrey Punjabi family lawyers and Punjabi prenuptial agreement lawyers to give serious consideration to negotiating a fair Punjabi family law agreement.

Key points under the new Family Law Act for marriage agreement negotiations are:

1. Complete and full disclosure is required and source documents proving accurate values and not mere lists of assets and guesstimates of values are needed,
2. Documents that prove value such as appraisals, purchase and sale documents and government valuations or assessments are crucial;
3. Accurately establishing the date on which assets and debts are valued is critical at the start and end of a relationship. While dates of marriage are easily proven, cohabitation start dates are often problematic in the absence of an agreement setting the start date.
4. Parties must give specific consideration to both the current value of assets and the potential increase in value.
5. Registration of ownership of property may have a huge impact on future division of same.

What are common terms in Punjabi marriage agreements or Punjabi prenuptial Agreements?

Surrey Punjabi family lawyers Serf Grewal of MacLean Law

If you want to divide property differently than under our BC Family Law Act- then a Punjabi marrage agreement and Punjabi prenuptial agreement might contain the following clauses:

1. Provisions that each spouse’s property, whether acquired before or during the relationship, remains separate and is not subject to division in the event that the relationship ends.
2. Provisions excluding the increase in value of certain property.
3. Provisions excluding some or all assets acquired during the relationship from division. For example a business or a house left to one spouse by their parents.
4. Provisions that a specific asset will be retained by a spouse, even if the amount of increased value of the asset is family property. Examples could be a company or a family home or vacation property one party has a strong attachment to.
5. Provisions limiting which debts will be considered to be family debts such as contracting that neither party can incur debt without consent in writing of the other spouse.
6. To provide for the sharing of some part of what would otherwise be considered to be excluded property. Think of a situation where parties are married 20 years and both spouses work hard to maintain a home or business that doesn’t increase in value but has a high net value on separation. Under the Family Law Act only the gain on a property brought into a relationship is shared so without this type of clause one spouse might be left penniless at the end. Remember BC houses actually can go down in value !

Our Surrey Punjabi family lawyers understand the law and the Punjabi culture. Our lawyers are approachable and skilled at explaining complex legal terms in a manner that is easy to digest. Contact us now.

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Vancouver Punjabi Speaking Family Lawyers Explain Divorce Before Trial

Our Punjabi speaking family lawyers regularly deal with financial disputes and divorces between couples who have connections to India and BC. Our highly acclaimed Vancouver Punjabi speaking family lawyers often need to deal with property division issues involving lands, monies and jewellery overseas in India as well as here in BC. Make sure you hire a senior family lawyer who understands the complexities of a case involving your South Asian culture.

Vancouver Punjabi speaking family lawyer Naseeb Kahlon of MacLean Law

It is critical that you meet with our Vancouver Punjabi speaking family lawyers if you are contemplating a divorce and or making a support, property division and restraining order claim.

Did you know a Punjabi speaking family law case involving a divorce can have a divorce granted before trial in cases where a one year separation has passed?

Our Vancouver Punjabi speaking family lawyers know that the BC Supreme Court ( not the Provincial Court) has the power to grant a divorce before trial if the prerequisites to obtain it under The Divorce Act are met unless the party who opposes such a pre-trial divorce proves the divorce occurring before trial would prejudice their claim for financial relief or other claims.

Our Vancouver Punjabi speaking family lawyers are happy to summarize a recent case involving a Punjabi speaking family breakup where the parties had potential criminal and family law proceedings being contemplated in India. This case shows what evidence is required before a divorce application pre-trial will be blocked for causing prejudice.

In this week’s Supreme Court decision in M.S.K. v. S.K.K., The trial judge granted a divorce before trial because the parties had been separated for over 1 year, there were no bars to divorce and no proper evidence to prove the wife would suffer prejudice in BC or India if it was granted.

Here is what the judge decided:

[15]        Similar information was presented to the court in Boyal v. Boyal, 2014 BCSC 2261. In that case, the wife sought to adjourn the divorce proceedings until after her claim in India was resolved.

[16]        Mr. Justice Ball found that the wife’s affidavit did not contain any admissible evidence of the prejudice she would face, given that it did not state the source of her belief that she would not be entitled to continue her claim in India if the divorce was granted. Even if she had properly indicated that her counsel in India was the source of her belief, however, Mr. Justice Ball pointed out the following problems that would have remained:

[17]     More fundamentally, however, even if Ms. Boyal had properly indicated that Mr. Sharma was the source of her information and belief, Mr. Sharma’s attached document is neither an expert legal opinion nor in affidavit form. It is thus not evidence.

[18]     While a court may consider unsworn statements of counsel on evidentiary matters, it is not appropriate to consider such statements where a fact in issue is of “singular importance”: see Winter v. Winter, [1993] B.C.W.L.D. 2901, [1993] B.C.J. No. 2275 at para. 35; Harbin Ding Culture v. Newman et al., 2004 BCSC 107 (CanLII) at paras. 10-11. The effect of a divorce order on Ms. Boyal’s action in India is a fact of singular importance in this action and it is thus not appropriate to consider Mr. Sharma’s unsworn statements.

[19]     Indian law is not a matter of fact well known in this Court of which judicial notice could be taken. In order for the Court to appreciate the effect of a divorce order on Ms. Boyal’s Indian claims, the opinion of an expert witness trained in Indian family law is required. An expert is a person, who as a result of training and experience in a particular area has acquired a level of knowledge sufficient to advise a court concerning particular circumstances within that area of expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at 20, 25. Apart from the statement in the document attached to Ms. Boyal’s affidavit that Mr. Sharma is “her legal counsel in India”, there is no information concerning his knowledge, experience or special study of Indian law, and whether he has ever given expert evidence accepted on any prior occasion in Indian or Canadian Courts. Ms. Boyal has thus failed to satisfy the Court that Mr. Sharma is an expert on Indian family law.

[17]        Mr. Justice Ball therefore held that the wife had failed to meet the terms of the earlier order to obtain evidence of the effect of a divorce order on her claims in India, so the divorce was granted.

[25]      In the present case, there is no suggestion that any foreign real property would be affected by the granting of a divorce. There is no claim for maintenance. The only thing that the respondent says will be affected by the order sought is her claim for her wedding expenses and the return of her dowry. The basis for this opinion is a letter from counsel in India, which cannot be relied on as an expert opinion for the reasons set out above.

[26]        The claimant has established the prerequisites for divorce based on the fact that the parties have been separated for over one year, there has been no collusion, and there is no reasonable possibility of reconciliation. The information tendered on behalf of the respondent is deficient as an expert opinion on Indian law and, in any event, it insufficiently sets out the nature of the foreign proceedings and any impact that a divorce would have on them. The claimant has therefore shown no prejudice or risk of prejudice associated with a divorce order.

[27]        The order for divorce is granted, effective 31 days from today.

Our Vancouver Punjabi speaking family lawyers know the law and the culture of our South Asian clients. Call us in downtown Vancouver at 604-602-9000.

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