Category: Separation and Divorce

Wrong. This is a common, but incorrect, understanding of child support; it sounds fair, but does not recognize that one parent usually has a higher income than the other and thus a greater ability to absorb the costs of providing a home for their children on a half-time basis. It also does not recognize that child support should be reviewed annually as the parents’ incomes change over time.

The Federal Child Support Guidelines (the “Guidelines”) were introduced by the federal government in 1997.  They are binding in all provinces and territories.  Although introduced under the Divorce Act, they have been adopted by many provinces and therefore apply to both unmarried and married parents.  They were adopted under BC’s Family Law Act.

Under the Guidelines, parents who share care of their children equally have a shared custody arrangement for the purposes of child support. Although section 9 of the Guidelines gives discretion to a judge to fully consider all the costs each parent incurs in providing a home for their children on a half-time basis, a simple set-off of the Guidelines table amounts is the most commonly used means for determining the amount of child support in shared custody arrangements. Here is an example of how the set-off under Guidelines works:

2019 example: The parents have two children, aged 9 and 11, who have no special needs and attend school full-time. The children have a rotating week on/off schedule: they spend one week in Dad’s care and the following week in Mom’s care. Mom works full-time as a nurse and earns $75,000 per year; her income for child support determined under the Guidelines after allowable deductions is $73,825. Dad works full-time as fire fighter and earns $110,000 per year; his Guideline income after deductions is $108,500. When we look at the Guidelines table for BC, we see the following monthly amounts of child support for the parents’ incomes:

Income	One child	Two children
73,700	703	1,144
73,800	704	1,145
73,900	705	1,147
…
109,300	1,025	1,644
109,400	1,025	1,645
109,500	1,026	1,646

To calculate the set-off amount, we subtract Mom’s monthly child support table amount of $1,145 from Dad’s monthly child support table amount of $1,645 with the result of $500. So, Dad would pay Mom $500 per month for child support.

The set-off approach is not appropriate for all family situations, and you should talk to a lawyer about the specific facts and costs of your parenting arrangements.

Special expenses: In addition, the parents would have to cover the children’s special expenses including child care, any private school costs, some extra-curricular activities, and medical, extended health and dental costs according to the ratio of their incomes. Special expenses are defined in section 7 of the Guidelines.

Disclaimer: The above information is given as information only and is not given as legal advice. Do not rely on this information as advice for your specific circumstances. Talk to a lawyer who specializes in family law about the specific facts of your circumstances to get advice on how the law applies to you.

There are three grounds for divorce in Canada:

1. Living separate and apart for one year.
This is the most common ground for a divorce order; a separation starts when one spouse clearly
communicates to the other that he or she wants to separate from the other spouse. It is not necessary (and often not financially feasible) to live in separate residences immediately after separation. If you can manage to live in the same residence with your spouse, after one of you has clearly stated his or her intention to separate, you may be better able to plan how you will share parenting responsibilities, organize your finances and choose the best process to resolve issues arising from your separation.

2. Adultery.
This is not a common ground for divorce, as the adultery must be proved to the court, adding to the cost of obtaining a divorce. Some spouses who have committed adultery, namely had sex with one person while married to another, may be willing to swear an affidavit admitting to their adultery. An affidavit is evidence under oath in written form. If the adultery is not admitted by the spouse who committed the adultery, other witnesses must give sworn evidence regarding the adultery. Under BC law, spousal misconduct, such as adultery has no relevance to the issues of property division and spousal support.

3. Physical and/or mental cruelty.
These are not common grounds for divorce. Like adultery, cruelty must be proved for the court, adding to the cost. The cruelty must not be minor, but so bad as to make continued cohabitation with your spouse intolerable. Spousal misconduct, such as cruelty, has no bearing on the division of property under BC law. It may be very relevant to parenting issues. If a relationship was violent or abusive, a professional should be consulted regarding protection of the abused spouse and any children of the relationship, and any ongoing concerns about parenting.

Practical Tips:

1. Avoid a “joint” claim for a divorce order. A “joint” claim is often attractive to people who separated rather amicably and when neither wants to “sue” the other for a divorce. However, a joint claim for divorce can be cumbersome. Both parties must either draft and sign the court documents, or provide joint instructions to the lawyer making the application. A “sole” claim by one spouse may be more straightforward. The other spouse can cooperate in accepting service of court documents and splitting the cost of obtaining a divorce order.

2. A Notice of Family Claim (sole application) or a Notice of Joint Family Claim (joint application) must be filed to claim an order for divorce. If you read any materials that suggest a Petition or a Writ of Claim is needed, the materials pre-date the changes to the Supreme Court Family Rules on July 1, 2010. You should seek legal advice regarding the court rules and forms required to obtain a divorce order.

3. Only a judge of the Supreme Court of British Columbia can make an order for divorce in BC. You cannot make a divorce application in the Provincial Court of British Columbia.

4. A little planning can lower costs and stress. If you separated some years ago, and wish to re-marry, begin the
application for a divorce well in advance of your next wedding date. Obtaining a divorce order takes approximately 4 to 6 months. In most cases, a divorce order becomes effective 31 days after it is made; the spouses are only then free to re-marry. If you re-marry outside BC, you may also need to obtain a Certificate of Divorce from the court registry that granted your divorce order; such certificates are not necessary to re-marry in BC.

5. A government issued marriage certificate must be filed with a divorce application. If you were married in Canada, you can obtain a marriage certificate from the province or territory in which you were married. If you were married outside Canada, it may take some time to obtain the needed certificate. A certificate from a religious official is not sufficient; you need a government issued marriage certificate. In some cases, it is impossible to obtain a marriage certificate, and such circumstances must be set out in the divorce application. For most provinces, marriage certificates can be ordered online with a credit card. For marriages in BC, certificates can be ordered at the Vital Statistics Agency website: https://www2.gov.bc.ca/gov/content/life-events/marriage/marriage-certificates.

6. Personal service of the Notice of Family Claim filed by one spouse must be made on the
other spouse. The spouse who filed the claim cannot serve the other spouse; a third party must serve the document. In most cases, you need a clear photograph of your spouse to provide to the person serving the court document.

7. To file a claim for divorce in BC, one spouse needs to be ordinarily resident in BC for one year.

8. Divorce applications are completed in two stages. In the first stage, the claim for divorce is filed at the court registry and served on the other spouse. After the required time for the other spouse to file a reply expires, the second stage may be completed. In this stage, affidavits regarding the grounds for divorce and child support are filed. If the application is abandoned after the first stage, no divorce order will be made.

9. Only one divorce application can be made and finalized in Canada. If an application for a divorce is made in one province, but not completed, a second application cannot be completed in another province without withdrawing the first application. The Central Registry of Divorce Proceedings tracks divorce applications made in the different provinces. If you believe that a divorce application may have been made and then abandoned by either you or your spouse, you should seek legal advice to obtain a divorce order.

© 2019 Karen Henry, LLB. karenhenrylaw@shaw.ca
Lawyer, West Coast Family Law Centre, 1179 Fort Street, Victoria, BC, Canada, V8V 3L1

Disclaimer: The above information is given as information only and is not given as legal advice.
Do not rely on this information as advice for your specific circumstances. Talk to a lawyer who specializes in family law about the specific facts of your circumstances to get advice on how the law applies to you.

1. Identify and manage emotions: If possible, help your friend identify his or her emotions, and then move on to managing these emotions. Grief, anger, and despair at the end of a relationship are expected; however, some of the actions resulting from those emotions can be very damaging. Your friend needs to recognize that anger is part of the normal cycle of grief, and that he can choose healthy and unhealthy ways to react to his anger. Encourage your friend or family member to seek help from a counselor or divorce coach. Extended health plans or employee assistance plans usually cover counseling or psychologist appointments. Community organizations offer counseling, some with fees on a sliding scale (e.g. Family Services of Greater Victoria).

2. Seek professional advice early: Encourage your family member to seek appropriate professional advice early on. Often financial, legal or parenting advice is needed; your friend or family member will be less vulnerable if properly advised. Competent advice at early stages leads to more realistic expectations. Many aspects of family law are objective – and the sooner your friend has accurate advice about property division, spousal and child support, the better. Some of the financial aspects of separation can be complicated, such as the division of pensions and business assets.

3. Give your time and energy: Time is often short for those in the bewildering stages of separation. The emotional impact is draining and the financial consequences can be challenging. It is difficult to find the extra time to gather documents, meet with professionals or attend court appearances. Your friend may need help finding resources such as parenting programs, counseling for children, or a new place to live. Consider how you can give your time and energy.

4. Value the other parent: If your friend has children, help your friend recognize the value of the other parent, and that their former spouse’s relationships with their children will continue (except in rare circumstances.) Likewise, their relationship with their former spouse as a parent will continue. There are many resources to help parents make the transition from life partners to co-parents.

5. Don’t encourage your friend to dwell on the faults of his or her spouse: Many people are extremely upset about their spouse’s behaviour, especially if such behaviour caused the relationship to end. Spousal misconduct is not significant to the legal matters of property division and support. Abuse or addiction issues may be relevant to parenting and should generally be addressed in that context.