- collect late support payments from a current or former spouse;

- obtain a spousal or a child support order from a current or former spouse; or,

- seek an increase in spousal or child support payments from a current or former spouse,

you can deduct those legal fees from your taxable income.  These deductions should be set out in line 221 of your Income Tax Return, and are discussed further in a tax guide issued by the Canada Revenue Agency.  Henderson Heinrichs can help review and identify which client expenses are deductible to make the process as simple as possible.

The newly proposed legislation provides that if people marry in Canada, and if the jurisdiction in which the parties reside does not recognize the marriage, those people can get a divorce in Canada.  The specifics are as follows:

1. Both parties or one party may apply for the divorce.  If only one party is applying and does not have the consent of the other, s.7(2) sets out that that party must obtain an affidavit from the jurisdiction in which he or she resides indicating why the other party’s consent is not forthcoming.  This is extremely problematic.  Divorce, unsurprisingly, is often accompanied by non-cooperation and given that the legislation is clearly focused on same sex marriages, the need for an affidavit could be an insurmountable barrier if it must be obtained from a jurisdiction hostile to such unions.  In Saudi Arabia or in the Sudan, for example, homosexuality invites the death penalty.                                                                                                                                                                                   
2. The residency requirement of the Divorce Act (ie. you have to live in the province through which you are applying for a divorce for at least one year prior to the application) is waived only in cases where the jurisdictions in which both parties reside do not recognize the marriage as valid.  The theory is that if one of the parties lives in a jurisdiction which accepts the marriage as valid, the parties can jolly well get divorced there.  Nothing too problematic there – even if that jurisdictions divorce laws are draconian, that’s not really Canada’s business.                                                                                                                                                                                                                                                                           
3. The party or parties applying must prove that they have been separated for at least one year.  The Divorce Act’s remaining two grounds for demonstrating the breakdown of a marriage; namely, adultery or physical or mental cruelty, are not available to those who might make use of the new legislation.                                                                                                                                                                                                                                                                            
4. The divorce, once ordered, will be immediately effective.  This is different than the standard order for divorce under the Divorce Act which does not become effective until 31 days after the pronouncement.  The reason for the delay under the Divorce Act is to avoid a circumstance in which a party might remarry immediately upon divorce.  As a Divorce Order, as with any trial level judgment in Canada, is theoretically appealable, if it were successfully overturned, the newly married party would face a potential bigamy charge.  Perhaps the legislation foresees that in the case of foreign residents, that is someone else’s problem.                                                                                                                                                
5. In all of this discussion, remember that this legislation in no way replaces or even alters the Divorce Act.  That means that parties who traveled to Canada and, one would hope, understood the residency requirements of Canadian divorce law, would be free to apply to reside in Canada for the requisite year.  Coming, however, on the heels of the Conservatives’ recently tabled Protecting Canada’s Immigration System Act, the ability to use the Divorce Act may be the purview of a select few.

Please contact our offices to find out if your support obligation needs to be adjusted to reflect the new table amounts.

Generally speaking, if Bob and Alice are spouses, Bob incurs a debt in his name, and Alice has not co-signed or in some other way promised to the creditor that she will also be responsible for the debt, then the creditor can’t demand payment from Alice just because she is married to Bob.

What the creditor can do if the creditor isn’t getting paid, is get a judgment against Bob and, if Bob still refuses to pay, ultimately go after the assets in Bob’s name.

Creditors may try to intimidate Alice and tell her they have a claim to the assets in Alice’s name too (collection agents often tend to be quite aggressive) but as long as no “triggering event” has happened, they would be bluffing.

The triggering events in BC are when:

1. both spouses sign a separation agreement;
2. the Court makes a declaration that there is no prospect of reconciliation (a “section 57 declaration”);
3. the Court orders a divorce; or
4. the Court declares the marriage is null.

Once a triggering event happens in BC, then each spouse is presumed to have a ½ interest in all family assets, whether they are owned by one spouse, the other spouse, or jointly. (This ½ ownership may be adjusted later by agreement or by a Court.)

So, generally, a spouse isn’t liable for debts that she didn’t take on and never promised to pay—not even her spouse’s debts.

If, however, Bob owes a debt in his name and a triggering event has occurred, creditors can try to go after property that is in Alice’s name because Bob, by default presumption, will have a ½ interest in all family assets—even ones that are only in Alice’s name.

Keep in mind, too, that your situation may lie outside the norm and we strongly suggest that you seek legal device prior to making any decisions.  The details of your particular situation (the character of the assets in question,  the actual ownership of the assets  and the nature of the debts owed) will dictate whether it is wise to seek or delay the timing of a triggering event. We routinely advise clients on these issues and you should contact us to discuss your particular situation.

The bill has not yet been passed, and of course there may be amendments or it may not pass at all.  However, now is the time to take a serious look at your situation if you are in a “common law” relationship.

Of particular relevance to those in “common law” relationships is the proposed transitional section 252 of Bill 16.   Section 252 provides that if you have an executed agreement regarding property, or if you have started a court proceeding regarding property division, before the act comes into effect, then the old Family Relations Act will apply to your case.  If you are in a common law spouse with the lion’s share of the property and considering separating, get to a lawyer to discuss your options as soon as possible.  Delaying could be very costly.

1. In a situation in which both parties have joint custody and joint guardianship of the children:
   1. Pursuant to s. 29(1) of the Family Relations Act, if a joint guardian dies, the surviving guardian will continue as sole guardian of the children.
   2. In a situation  in which one party is the sole guardian of the children and the other party has no guardianship or custodial rights:
      1. Pursuant to s. 29(2) of the Family Relations Act, if the sole guardian dies, a surviving parent of the children who is not a guardian at the time of the deceased’s death does not become a guardian unless the parent has been appointed under section 50 of the Infants Act or is, by order, appointed under section 30 of the Family Relations Act.

That section of the Infants Act states:

1. i.      That a parent may appoint, by deed if (the parent is) under age, otherwise by deed or will, a guardian to act in his or her place on his or her death as guardian of an infant child under 19 years; and,
2. ii.      If either parent dies, the surviving parent may by will transfer part or all of his or her rights and duties to custody, control and management of their infant child’s property, but not the infant’s services and earnings, to a suitable person.
3. Pursuant to s.  30 (1) of the Family Relations Act, a court may, on application:
   1. i.      appoint a guardian, or
   2. ii.      remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
4. Pursuant to s.  30 (2) of the Family Relations Act, if a child is over 12 years of age, a court must not make or give effect under subsection (1) to an appointment unless:
   1. i.      the child consents in writing to the appointment, or
   2. ii.      if the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
5. Pursuant to s.  30 (3) of the Family Relations Act,  a person other than the father or mother of a child must not, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, if a necessary consent has not been given, that:
   1. i.      the parent who could give or withhold consent is not reasonably available, or
   2. ii.      the consent is being unreasonably withheld.
6. Pursuant to s.  30 (4) of the Family Relations Act, an order must not be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
7. Finally, s 30 (5) of the Family Relations Act stipulates that if satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.

Planning for your children’s future is a complex task and the intersection of family law and estate law makes it doubly so.

The best way to ensure that your wishes with respect to any issue being carried out after your death and that your children’s best interests are protected to is to obtain advice from independent legal counsel who can direct you through this legislative maze.  Here at Henderson Heinrichs our lawyers are capable of advising you with respect to such a complicated issue.

In Owen, the court was faced with non-payment of spousal support by a wealthy husband, in contravention of the terms of a separation agreement.  The court found that, in addition to losing the money itself, the wife lost certainty, security, and the ability to budget, invest and control her own financial resource, all of which she had bargained for in the agreement.

Because of this, the court agreed that the Agreement had been repudiated by the husband, and on the basis of the action brought forward, that the wife accepted that reputiation.  The result was stark:  the husband was required to pay back the arrears that had accrued under the terms of the agreement to the date the repudiation was accepted.  Further, the wife was freed from her obligations under the agreement and was able to once again pursue a reapportionment of the very substantial family assets, something that she had given up under the agreed upon terms.  Finally, as the agreement was no longer in effect, the husband was once again required to pay a higher, interim, spousal support sum which had been ordered prior to the Agreement being reached.

The wife, of course, did not have to accept the repudiation, and she could have sought a far more common remedy; namely, that the agreement be enforced.  But the choice was hers, and it serves as a valuable reminder that the person breaching the agreement will rarely receive benefit for that breach from the court.

In Wolfman-Stotland v. Stotland, 2011 BCCA 175, (CanLII) the court grappled with the question of a spouse’s capacity to separate.  In this case, the claimant wife and the respondent husband were  92 and 93 years old respectively, and the wife applied for a  s.57 declaration that there was no reasonable prospect of reconciliation.  In opposing that application, the Husband sought and received an order that a doctor provide an opinion as to the Wife’s capacity to make the  – though the doctor found that the wife had the capacity to instruct counsel regarding the financial aspects of the divorce claimed, she “did not have the capacity to form the intention to live separate and apart from her husband” [at paragraph 14].  The Chambers judge defined the relevant issue as whether the wife had the ability to both manage her affairs and instruct counsel.  The Court found that she did not.

The Court of Appeal disagreed.  Upon re-examination of the issue, the Appeal Court determined there should not have been a dual test.  The ability to manage ones affairs was determined to be a higher capacity than the one needed to instruct counsel and the court overturned the Chambers Judge’s decision.

The Husband’s application to appeal to the Supreme Court of Canada was dismissed, and the test for the capacity necessary to separate therefore remains a very basic one.