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Can I get divorced by agreement?

No.  To get divorced you require a court order.  You cannot get divorced by a divorce agreement.  

However, this does not mean that you  have to attend court.  Confusing?  Let us explain .... 

Should you and your former spouse reach agreement on all issues, either independently, in lawyer-assisted negotiation, or in mediation, you can file this agreement with the court and apply for a divorce through what is known as a “desk-order divorce application".

This is an application that is filed with the Court Registry and, as its name suggests, essentially goes to a Judge's desk for review and (hopefully) the making of the order.

People who try to get a desk order divorce without the assistance of a lawyer often get their application refused.

This is because there are very specific forms that must be used in these applications, and specific affidavits that must be drafted and sworn.  

The most important documents are those relating to the care of children and their support.  The Judge is not permitted to grant the divorce unless they can satisfy themselves that reasonable arrangements have been made for the care of any dependent children.

At Candid Legal Law Corporation, we have a paralegal who specializes in desk order divorces so that we ensure our clients can obtain one as quickly and cost-effectively as possible. 

Based on information provided by you, the paralegal will draft all of your materials, which are then reviewed by a Nanaimo family law lawyer. This team-based approach ensures you get quality drafting without paying for several hours of a lawyers' time to draft documents that can be accurately drafted by a skilled, trained family law paralegal.

Give us a call so you can start planning your “divorce party” and leave the legal drafting to us.

What goes into a separation agreement?

A Separation Agreement usually includes two main parts - the recitals and the provisions.  A simple way to think about what goes into each of these sections is that one section is for the agreements (the provisions) and the other section is for the context in which the agreements were made (the recitals).  The context includes all of the basic background facts that are relevant to the people entering into the Separation Agreement.

The basic background facts usually include facts about the length of the parties’ relationship, their age, health, employment status and income, whether there are any children (and their names and dates of birth), and the parties' significant assets and liabilities (either listed directly in the recitals or included in attached appendixes).  These basic background facts should appear in the recitals to virtually all separation agreements.

Additional facts that would help a court assess the fairness of the agreement, or whether an agreement is in the best interests of a child or children, also go into the recitals.  Examples include:

  • whether an unequal allocation of assets and/or debts is intended to perform a compensatory role (either instead of or as part of spousal support obligations) or to account for excluded property (or debts);
  • parenting regimes that rely on a history of care, or the particular needs of a child; and
  • time-limited circumstances or other factors that may be having an impact on the income of one or both parties which are not expected to continue.

The provisions of the actual agreement typically contain a number of standard form provisions (for example on the applicable provincial laws, definitions, disclosure, and things that may or may not permit changes to the agreed provisions) as well as the specific agreements on the main topical areas of division of property and debt, child support, spousal support, and parenting arrangements.

Generally, it is important to have a Separation Agreement drafted by a professional, and tailored to your specific circumstances and needs.  "Do it yourself" forms available online produce poor agreements, often with serious risks of which one, or both, parties are unaware.  These do it yourself agreements are often not acceptable to banks, mortgage brokers, or to the court (i.e. for consideration for desk order divorces) and can lead to very expensive and drawn out court battles if one of the parties seeks to challenge it at some point in the future.

At Candid Legal Law Corporation, we have created precedents and systems which enable us to offer the drafting of affordable Separation Agreements.  Where parties are largely in agreement on all terms, they can often be drafted at predictable prices.  Schedule a consultation to meet with a lawyer or a trained professional paralegal to determine how you could benefit from this service.  

Is it abuse to spank my child?

The purpose of the force must always be the education or discipline of the child:

                  Ogg-Moss, supra, at p. 193.

Section 43 of the Criminal Code attempts to accommodate the needs and safety of the child while giving parents the ability to correct behaviour and educate their children without fear of prosecution or sanction.

Spanking is a contentious issue, particularly between parents in a separation situation. What might seem like a reasonable response to a child’s misbehaviour to one person, could be construed as abusive to someone else. As a result of experiencing various levels of physical discipline as children in our own pasts, perspectives on what is appropriate discipline can be immensely varied.

To try to help remedy this problem, we can refer to Section 43 of the Criminal Code which addresses the use of reasonable force for correction of children.

The Supreme Court of Canada, upon review of this issue, has provided some guidance.  Parents are permitted to:

  • Only use force as a correction when sober and reasoned.
    • Correction must not be motivated by anger
  • Only use force that is reasonable.  Examples of unreasonable force would include: 
    • Corporal punishment using objects is harmful to both the physical and mental well-being of a child.
    • Blows to the head are harmful.
  • Only use corporal punishment with children  who can benefit from the correction.
    • Children under the age of two do not have the cognitive maturity to understand the connection between the behaviour and the correction. Likewise, it is also inappropriate to correct a child who is unable to understand due to a disability.
    • Teenagers, in contrast, are cognitively able to understand the correction, but it can trigger aggressive behaviour so it is deemed to be a harmful corrective tool.

Who will make decisions about the children after divorce or separation?

You do not lose the right to make decisions about your children, including decisions about where they will live and what will happen on a day-to-day basis in their lives, simply because you no longer live with the other parent. A parent who lived with their child is that child’s guardian, whether or not they continue to live with the child.

Absent an order or agreement stating otherwise, each of a child’s guardians may exercise all parental responsibilities in consultation with the child’s other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. What consultation means is not defined by law, and if you and the other parent are having difficulty agreeing on matters respecting the children, it is a good idea to seek legal advice.

Parental responsibilities are set out in the British Columbia Family Law Act, and include all responsibilities reasonably necessary to nurture the child’s development. For example, each guardian has the right to make decisions affecting the child and to have day-to-day care, control and supervision of the child. Each guardian also has the right to make decisions respecting where the child will reside, with whom they will live and associate, and regarding their education and participation in extracurricular activities. Guardians also have the right to obtain information directly from their children’s schools and doctors.

What does a British Columbia court consider when determining what is in a child's best interests?

The Family Law Act sets out specific criteria for consideration of what is in a child’s best interests in section 37(2):

(a) the child’s health and emotional well-being;

(b) the child’s views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child’s life;

(d) the history of a child’s care;

(e) the child’s need to stability, given the child’s age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed towards the child or another family member;

(h) whether the actions of a personal responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

When do I need a lawyer to separate from my spouse in BC?

Generally, it is a good idea to meet with a lawyer as early in the process as possible. It is important that you are informed about your legal rights and responsibilities regardless of which dispute resolution process you ultimately decide to pursue.

A common mistake made by divorcing and separating people is to first separate, then seek legal advice. We recommend speaking to a Nanaimo family law lawyer before you separate, so that you may properly prepare for all the rights and obligations triggered on the separation date (i.e. the determination of rights and responsibilities towards shared debt, children, and dependent spouses).

Whether or not you move out of the family home, and whether or not the children move with you, can have a significant impact on the extent to which you are able to participate in parenting.  In the immediate aftermath of the separation, the other parent may attempt to deny you time with your children out of anger or fear.  Months can then go by where your time with your children is restricted as you attempt to negotiate all of the issues that must be resolved between yourself and your former spouse.  In some cases, the impact on the parenting arrangement can be permanent.

The division of assets can also be complicated if you move out before seeking legal advice.  For example, it is typically easiest to gather all of the financial information you will require to value assets and debts while you are still in the home.  Similarly, it can be far easier to negotiate who will be responsible for which debts before you move or your spouse moves.  A worst case scenario, which happens more frequently that you may expect, is that the departing spouse is expected to continue to pay the entirety of the mortgage and expenses on the family home - while also paying child support and their own living expenses.

Speaking to a lawyer before you leave does not mean that you will escalate the conflict with your spouse.  In many cases, it can help you plan together for your mutual parenting and financial obligations, and help connect you with appropriate experts to assist in the process.

If I move out of the house, will it be clear that we are separated?

One spouse moving out of the home is often sufficient to establish legal separation in British Columbia, but it is not a guarantee. Cases do exist where a court has determined that spouses continue to be in a marriage-like relationship even though they no longer reside in the same residence. Difficulties in determining a date of separation can also arise where one party has already been residing in a second residence, say for example for out of town work.

A finding that the relationship ended at a later time can have the effect of extending the period for which you could be liable for your spouse’s debt, changing the assessment of what property is considered family property, and delaying the start of the two-year time period during which non-married spouses may seek various property remedies against you.

If you have ceased living with someone who you lived with for two or more years, and that relationship was a relationship that could be characterized as marriage-like, certain forms of continuing relationships with that person could leave you vulnerable. If this sounds like your circumstances, seek legal advice.

Do I have to move out of the family home to separate from my spouse?

No. This is what often occurs, but it is not necessary and in many cases may not be in your interests. Before deciding to move, seek legal advice.

In British Columbia, you can be considered separated even while continuing to live in the same home.

Whether spouses are considered to be separated in such circumstances requires the application of a factually driven legal test set out in the case law. Difficulty can arise when one spouse argues that that parties were separated and the other claims that they were not.

If you continue to live in the same residence of your spouse but want to ensure that you are recognized as separated, seek legal advice to ensure that you will be able to demonstrate separation as of a specific date even if your spouse later disputes the date of separation.

What do I need to do to obtain a legal separation in British Columbia?

Once you communicate to your spouse an intention to separate permanently and also take action to demonstrate this intention, you are legally separated.

It sounds simple, but in practice it is often not. Future disputes over the precise date of separation may be avoided by having your spouse sign a simple agreement setting out the date of separation early on in your negotiations about other matters. Have an independent third party witness both of your signatures. However, this is not a guarantee that the precise separation date will be firmly established, and it is a good idea to seek legal advice if it appears your spouse may dispute the separation date in the future.

The date of separation is important for a number of reasons. Under the British Columbia Family Law Act, the separation date is the date when:

  • the date when you get a right to a one-half interest in all of the family property;
  • the date when you take responsibility for one-half of the family debt; and
  • the start of the two year limitation period within which you must start a court action to divide property and debt.

The separation date also has an impact on whether you are your child’s guardian, with the right to make decisions about their care and to have parenting time with them. Parents who have lived with their children are automatically guardians, even after they separate. Automatic guardianship may not apply if you separate before the child is born.

What are special and extraordinary expenses?

In addition to child support, when you share custody in British Columbia you may be entitled to receive or required to contribute to the children’s special and extraordinary expenses. These are expenses that are defined to be necessary because they are in a child’s best interests, and reasonable in relation to the means of the parents and of the child and consistent with the family’s spending patterns prior to separation.

In some cases, contributions towards special and extraordinary expenses may dwarf mandated child support expenses. The amount of special and extraordinary expenses can be substantial — those for uninsured dental expenses, day care, and university tuition and living expenses.

Parents are free to agree as to how to allocate these expenses, and also to agree that expenses must be agreed to before they are incurred. This can be a good strategy as it provides a degree of certainty as to what your individual financial obligations may be. In many cases, special and extraordinary expenses are shared on a proportional to income basis. The amount of child support paid and received can be considered in calculating income for this purpose.

Special expenses may include child care expenses, medical and dental premiums for the child, health care needs that exceed $100 and are not covered by insurance, extraordinary expenses for extracurricular and educational activities, and post-secondary education expenses.

Extraordinary expenses are expenses that the parenting requesting a contribution cannot reasonably cover, in light of their income and the amount of child support received, or that are extraordinary in relation to:

  • the income (including child support) of that parent,
  • the nature and number of the programs and extracurricular activities,
  • any special needs and talents of the child,
  • the overall cost of the programs and activities, and
  • any other similar factor that is relevant.

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