Post-Secondary Education Costs
There can be a positive obligation on separated or divorced parents to support a child through post-secondary education if that cost is labelled an extraordinary expense pursuant to s.7 of the Federal Child Support Guidelines. That section states that,
Special or extraordinary expenses
7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
The question this raises in my mind is why separated or divorced parents are subject to this potential obligation when children of parents still together are subject to the vagaries of their parents’ decision. Would a child of parents who are still together be able to secure similar funding if the courts were asked to intervene?
Posted: February 3rd, 2011 under Child Support, Legislation Analysis.
Tags: Child Support, education, Maintenance, married, separated, University
Family Law Mediation
Henderson Heinrichs is committed to exploring all options to assist our clients reach successful resolution of their family law issues. To that end, we are pleased to advise that we have certified Family Law Mediators at our firm who are trained to facilitate out of court settlement.
Mediation is an alternative dispute resolution process for resolving family law issues, such as custody, access and child support. The mediator is jointly selected and retained by both parties. Because of the need to maintain mediator neutrality, Henderson Heinrichs’ existing litigation clients will be referred to other well regarded mediators. Prior to engaging in the mediation process both parties are required to sign a mediation agreement whereby they commit to working out the issues without going to Court.
Mediation at Henderson Heinrichs takes place in a private, informal setting where the parties actively participate in negotiations with a goal of reaching an agreement. Mediation requires hard work from both parties and a commitment to work on reaching a solution, even when things get difficult. Rather than be destructive, mediation helps parties work through the underlying emotional issues, and helps them build and create a solution the works best for them and enables them to move forward positively.
Litigation should be a last resort in family files as can be expensive and destructive both emotionally and financially. Mediation is usually less expensive than traditional litigation, faster and overall a much more constructive process. Mediation allows the parties to retain control over the process and outcome and allows them to create a solution that works best for their family and their own circumstances.
Mediation with a certified Family Law Mediator at Henderson Heinrichs has numerous benefits and allows parties to have a neutral, impartial professional assist them in reaching successful outcomes. Our mediators establish ground rules for respectful communication and create a safe and confidential environment where the parties begin to work on identifying the issues and creating customized solutions. The mediator will assist, where necessary, in clarifying facts and issues. Our mediators will help the parties explore ideas and options for settlement, while also sometimes serving as a reality check and/or sounding board.
Henderson Heinrichs’ mediators will help the parties keep the lines of communication open or assist the parties in re-establishing positive and healthy communication and help the parties move forward, which is invaluable and essential when there are children involved. The mediator will help build in effective communication strategies when necessary.
Mediation is successful when both parties are committed to working in this framework. Mediation has been used successfully to resolve all areas of family disputes including custody and guardianship issues, primary residence, parenting plans, asset and property division, spousal support, separation agreements and cohabitation agreements.
The mediator may also suggest other resources and tools that will assist the parties and will make best efforts to assist the parties in reaching a resolution outside of Court.
If you would like more information on how mediation with Henderson Heinrichs might be beneficial for you, please feel free to contact Shelina Sayani at (shelina@hhlaw.ca) shelina (at) hhlaw (dot) ca or Rain Henderson at (rah@hhlaw.ca) rah (at) hhlaw (dot) ca or set up an appointment by calling our offices at 604-669-3500.
Posted: January 12th, 2011 under Mediation.
Tags: Family Law Mediation; Family Law Mediation Vancouver, Henderson Heinrichs Mediation, Mediation, Mediation Access, Mediation Child Support, Mediation Custody, Mediation Parenting Time, Shelina Sayani
Merry Christmas and Happy Holidays
Everyone at Henderson Heinrichs wishes you a merry Christmas and happy holidays.
Posted: December 23rd, 2010 under Announcement.
Tags: Announcement
Investing in Divorce? Not here.
Sometimes a new idea comes along which reaffirms our faith in what we already have.
A company has been formed in California with the sole purpose of financing divorce litigation. The firm justifies itself by suggesting that spouses of the űber-wealthy (the firm in question specializes in cases with assets valued north of $2 million) require financing to level the playing field. Its altruism diminishes, however, when it comes to remuneration, treating the parties family problems as an investment. The company is paid with a percentage of the ‘winnings’ on the completion of trial or on settlement.
In BC, lawyers in divorce cases are prohibited from being paid on contingency; that is, by taking a percentage of money ‘won’. The parties’ and the children’s interests rather than the potential capital return should be the motivation for the parties’ decisions. The prohibition against contingency billing removes the potential that lawyers will seek to serve their own interests by advocating litigation which that may not be in the interests of those involved.
In regards to the involvement of third parties in the financing of litigation for profit, the common law in British Columbia maintains that this is improper. Such investment in litigation, or champerty, is discussed more fully in Farley v. Pearlson, 2001 BCSC 1237.
While there is always the potential for abuse within a system, B.C. has dealt specifically with the problem of for-profit litigation financing and it seems unlikely that similar investment schemes will appear any time soon in the province.
Posted: December 8th, 2010 under Case Analysis, Common Law, Finances.
Tags: Champerty, Financing, Funding, Investment, Litigation
Fallout from a No-Show
Is there any difference between an order pronounced after a contested hearing and one ordered when one of the parties hasn’t attended? The order itself is equally valid and binding in each circumstance. If the order is later challenged, however, differences emerge. Rule 14-7(77) of the BC Family Rules provides that, “The court my set aside a verdict or judgment obtained if a party does not attend the trial” The test for setting aside an order is generally held to be the test set out in Miracle Feeds v. D&H Enterprises Ltd. 1979 CarswellBC 48, 10 BCLR 58 which provides that that the party seeking to have the order set aside must show that:
- That he did not willfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim;
- That he made application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of the default judgment, or give an explanation for any delay in the application being brought
- That he has a meritorious defence or at least a defence worthy of investigation; and,
- That the foregoing requirements will be established to the satisfaction of the court through affidavit material filed by or on behalf of the defendant.
Until that application comes before the court and unless the order is set aside, it is fully valid. But an order obtained in a contested application is not subject to this provision. In the end, it’s probably a wash given that it’s generally a little easier to get an order when no one is opposing you.
Posted: November 26th, 2010 under Case Analysis, Legislation Analysis.
Tags: 14-7(77), miracle feeds, orders, set aside, undefended
