Variation of Wills

 

In our province the Supreme Court has the ability to vary a will pursuant to the Wills, Estates and Succession Act. Spouses and children of the will-maker (formerly known as the testator or testatrix) are entitled to pursue a court action for a greater share of an estate.

Spouse is defined as a person who is married to the will-maker. For non-married persons this includes a person who lives with the will-maker in a marriage-like relationship, including a relationship between persons of the same gender, and has lived in that relationship for a period of at least two years.

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Spousal Support

The issue of spousal support may be a significant aspect of any separation or divorce.  Spousal support is often misunderstood.  The Supreme Court of Canada has proposed two models of spousal support that are often referred to by our courts. 

The first model is referred to as ‘compensatory support’, which is largely premised on the notion that the financial cost of one spouse’s lost economic opportunity as a result of remaining at home to raise children should be borne equally by the spouses upon marriage breakdown. 

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Marriage or Cohabitation Agreements

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The concept of marriage or cohabitation agreements has been around for many years.  They are often referred to as prenuptial agreements, which is actually a fairly archaic term.  The Family Law Act of British Columbia has now created a genuine sense of equality between married and common law couples in that couples have similar rights and obligations whether or not they are legally married. 

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Division of Family Property and Debt

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In many ways the division of family property and debt following a separation can be both simple and complex.  It can be a simple process as the division of family property and debt is governed by our Family Law Act and the framework of the legislation is based on the concept that assets and debt accumulated during a marriage or relationship is prima facie divided equally upon separation or divorce.  However, some assets that are accumulated during the relationship such as through an inheritance or gift are considered ‘excluded property’ that is not subject to a division with a spouse.  Likewise, assets brought into a marriage or relationship by one spouse are also excluded property and only the increase in value of the asset during the relationship is divided with a spouse.

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Determining the Date of Separation

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Determining the date of separation for both married and common law couples can be very important in any family law case.  For example, the date of separation is used to determine when a divorce order can be obtained on the grounds of living separate and apart for at least one year.  As another example, a common law spouse has only two years from the date of separation to pursue a spousal support claim (Section 198 (2) of the Family Law Act).  Similarly, a common law spouse that wants to pursue a claim for property division under the Family Law Act must commence a court proceeding within two years from the date of separation. 

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Views of Children in Custody & Access Cases

In determining the appropriate parenting arrangement, the courts are specifically directed by our legislation to consider only the best interests of children (Section 16(8) of the Divorce Act).  In determining what is in the best interests of a child, all of the child’s needs and circumstances must be considered by the court, including a number of factors set out in Section 37 of the Family Law Act.  These factors include the child’s views, unless it would inappropriate to consider them.

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Separation Agreement

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We are often asked by clients at an initial consultation to obtain for them a “legal separation”.  Usually this means the parties want to enter into a written separation agreement that resolves all issues arising from the breakdown of their marriage or relationship.  Both married and common law couples can obtain a separation agreement which is basically a contract between the spouses that resolves the issues such as parenting arrangements, child support, spousal support, division of assets and debts. 

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Child Support

Both the Supreme Court and the Provincial Court of British Columbia can make orders for child support.  Generally child support is paid until the age of majority, which in British Columbia is until age 19.  However, child support may still be payable after a child’s 19th birthday if that child by reason of illness, disability or other cause still needs financial assistance from a parent.

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Uncontested Divorce

Our law firm offers at a reduced rate the services required to obtain what is often referred to as an ‘uncontested divorce’.  If we are retained to provide this service we usually only require one document from you, namely, your marriage certificate.  The Courts require the government issued document and not a photocopy of your marriage certificate.  If you do not have your marriage certificate we can order it for you and if you were married in B.C. it can be obtained within a short period of time.  If you were married outside of this jurisdiction, such as in a foreign country, it may take a longer period of time to obtain your marriage certificate or registration of marriage.

A spouse may commence divorce proceedings in the superior court of any jurisdiction in which either spouse had been ordinarily resident for a least one year immediately preceding the commencement of the divorce proceeding (Divorce Act, Section 3(1)).  In our province the superior court is the Supreme Court of British Columbia. 

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