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Law Matters - Jeff Zilkowsky

Separating from partner? Big dollars!

Separating from your partner can be painful.

Maybe you still love your former partner and you wish you were still together.

Or, MAYBE you’re really happy that you no longer have to wake up with that person; but, you’re miserable because you have to deal with the money issues of the separation...

One of the big financial issues of a separation is dealing with spousal support: either paying it or receiving it.

For your sake, I hope that you never have to learn about spousal support first-hand. But, if you do or if you know someone who is going through a separation, here’s some information…

 

So, what is spousal support?

Put simply, spousal support is a payment from one spouse to another. It is primarily designed to:

  1. Make sure that neither partner will face financial hardship as a result of the separation; and
  2. Ensure that each partner becomes financially independent after the separation.

You should know, too, that after your relationship is over, you don’t automatically pay or receive spousal support. It is nowhere near that easy.

The first hurdle to getting spousal support is that you must have been married or, if not officially married, been living in a marriage-like relationship for at least two years.

If you’ve cleared this first hurdle, then you must consider whether or not you’re even entitled to spousal support. I’ll explain….

There are three ways in which a partner can be entitled to spousal support:

  1. Contractual Support;
  2. Compensatory Grounds; and
  3. Non-Compensatory Grounds.

The above-noted terms have legal definitions. So, I’ll explain each one below.

Under the “contractual grounds”, a support payment (to pay or receive) is created out an agreement that you may have made with your partner. If you haven’t agreed to anything, then consider the next basis for entitlement.

Under the “compensatory grounds”, a spouse is entitled to spousal support if they agreed (even implicitly) to not maximize their earning potential and instead, for instance, raise children and/or accept a lower paying job. At the same time, then, the other spouse is able to leave the home and pursue their employment potential.

Under the “non-compensatory grounds”, a spouse is entitled to spousal support if one spouse (truly) needs the money and there is a big difference between the incomes of the two spouses. In this case, the court will say, “There is a social obligation that the disadvantaged spouse be supported by the other spouse who is earning more money.”

If there is entitlement (under any of these above-noted grounds), then the court may require one spouse to pay spousal support to the other.

The amount of money payable in support will typically be dependent on the incomes of both spouses and the length of the marriage. And, for your information, the longer the marriage and the larger the difference in incomes between the parties, the more money one spouse will need to pay to the spouse.

And, please also remember that spousal support can be payable by either the husband or the wife: it does not discriminate based on sex.

And, sadly, as with most columns, I can only give you the tip of the iceberg.

 

If you have any questions, I recommend either contacting a lawyer or reviewing the case law on the following website, providing free access to court decisions: CanLii.

 

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.





Sex offenders and their children

Few, if any, people are as hated in our country as sex offenders, particularly those sex offenders who commit crimes against children. 

With that said, then, the purpose of this column is not to further demonize those offenders.  

Instead, the purpose of this column to briefly address what happens to the children of these sex offenders... 

And, no, I am not referring to children who were the direct victims of crimes.   Rather, I am referring to the children that 'belong to' the sexual offenders (i.e. their biological or step children).

Think about it...  We rarely ever hear about what happens to those children, right?   Well, that's the  purpose of this column. 

The collateral damage to the children of the sexual offenders is huge.  These children have elevated risks of depression, anxiety, and suicidal tendencies.   It may surprise you, too, to know that the children of sexual offenders experience stigmatization and harassment from others (like their parent).   This is, of course, completely unfair; but, it's a reality.

Now, of course, these are longer term effects.  So, what happens in the short term?    What happens to the children immediately after their parent's conduct becomes known? 

Well, in the short term, it is often unlikely that the offender will receive much, if any, unsupervised parenting time with their child(ren).  

Once the offence is discovered (depending on the seriousness of the offence), the Ministry of Children and Family Development would likely oppose the child being in the (unsupervised) care of that parent.   The Ministry's mandate is, of course, to protect children. 

Beyond that, too, it probably won’t surprise you to know that the other parent (who was NOT involved in the sexual offences) will likely oppose any contact between the child and their former spouse.  If that occurs, then a bitter court action will likely ensue.

Now, it is generally presumed (in court) that a child will benefit from spending time with both parents.  But, that presumption can be 'set aside' when one of the parents has a history of criminal or dangerous behaviour that may harm the child.    And, of course, that includes a parent who has a history of committing sexual offences. 

So, as a result, if the matter went to the court, a parent who has a lengthy and/or serious history of sexual offending behaviour would likely have a difficult time getting unsupervised parenting time (and may even receive ZERO time with their child). 

For instance, in J.M.G. v. T.H.P, 2007 BCPC 142, a father had a history of sexual offences that occurred prior to the birth of his son, who was three years old at the time of trial.   In that case, the judge found that it would be in the best interest of the son to grow up (at least for several years) without a relationship with his father, who was a thought to be a very bad influence. 

With all that said, though, it is POSSIBLE, depending on the facts in a case, that a sexual offender may receive parenting time.   Such parenting time would likely be supervised, though.  And, to explain, supervised parenting time refers to time that the parent can spend with the child in a supervised setting, typically supervised by a social or community worker or a friend or family member.    

Please know that this particular topic is huge.  And, my column surely can’t do it justice.  But, if there is one thing that I can make clear, it’s this: have sympathy for the children (and don’t take out your frustrations on them).   Because of their parent’s actions, their lives are forever changed.  

And now you know.  



Afraid of a family member?

Whether or not you choose to believe it, domestic violence is incredibly, incredibly common.

Here are some Canadian statistics:

  1. In 2006, 12% of all criminal prosecutions in BC were domestic violence cases;
  2. Only 28% of victims of spousal violence will actually report these incidents to police;
  3. 30 to 40% of children who witness abuse on their mother will also experience physical abuse;
  4. Of those children who were physically or sexually assaulted by someone, in 60% of the cases, the parents were the abusers; and
  5. 1/3 of all reported violent incidents committed against elderly adults were committed by a family member.

Clearly, for many, many individuals, those people who are supposed to be their best friends are their worst enemies…

I have seen many people who are victims of family violence and, it is awful. Some people are so incredibly scared that they burst out in tears at the thought of being with their abusive partner; AND, at the same time, they burst out in tears at the thought of being without their abusive partner.

So, if you are one of these people who desperately need protection, what should do you?

Well, first and foremost, you should call police. Police are of course, there to protect us, right? And, if you feel any threat to your safety, then absolutely call police.

Often, though, women (or men) who call police (initially) are not cooperative with police after they attend. As a result, criminal convictions against the abusers are often difficult to get.

Consider this: if the primary and only witness in a domestic violence case does not want to give evidence (against the abuser) in the trial, how can there be a trial? How can the Crown Prosecutor get a conviction against the abuser?

Now, what else can someone do other than call police?

Well, for one thing, they can apply to court and get a protection order. On television, these are common referred to as ‘restraining orders’.

In order to get a protection order, you need to go to court and convince a judge of two things:

  1. You are a family member of the abuser, which includes a child, parent, or spouse or ex-spouse/partner (of the abuser); and
  2. There is a risk that you will be hurt.

If you can convince a judge of these two things, then you will get a protection order.

Convincing a judge that you are a family member is usually very easy: it is typically as simple as explaining that you are the ex-spouse, child, or parent of the abuser.

The next step, though, isn’t quite as easy…

In order to convince a judge that you will be hurt, you need to describe the recent threatening conduct of the abuser. This includes past police incidents, past incidents of abuse, and past stalking behavior. Be prepared to describe the dates and events of abuse for the judge.

I can hear you thinking, “So what? What good is a protection order?”

Well, the answer is that it is an incredibly powerful document that can be shown to police if the abuser violates the order in anyway. In fact, it is a crime to violate a protection order.

Imagine this: you get a protection order against your former spouse, which says that he/she cannot have any direct or indirect contact with you. Now, let’s say that your ex-spouse sends you multiple Facebook messages.

Without the order, what would you do? Would you call police and tell them that you are getting Facebook messages?

How likely is it that the police will be able to do much against this person? After all, they aren’t committing a crime, right? They are just sending Facebook messages…

But, with a protection order, your ex-spouse IS committing a crime and the police have some ‘teeth’ to speak to the abuser and do whatever else they deem fit to ensure that your ex-spouse leaves you alone.

Here’s the bottom-line: if you are being abused, contact your police department, your local YWCA, a women’s shelter, or any other service that you choose.

You don’t have to live with abuse and there are services and people waiting to help you.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.





Child Support: A must read for parents

Ever wonder why the women on the Maury Povich show want to confirm ‘who the father is’? My (jaded) guess: they want child support.

On that note, child support is one of the most commonly misunderstood subjects in family law. And, rightly so: it’s complicated.

So, in the interest of clearing up some of those misconceptions, this column will address some of the general laws/rules around child support.

To begin, what is child support? Put very simply, it is money paid by one parent (who doesn’t primarily reside with the child) to another parent (who does reside with the child) to cover those costs associated with raising that child, such as food and clothing.

How much money does someone actually pay? Well, this question is usually very easy to answer. Typically, the amount is based on the number of the children (who are receiving support) and the income (of the person being asked to pay support).

I’ll explain further…

There are Child Support Guidelines (i.e. tables) that state how much money someone should pay based on how much money that person earns and how many children that person has to support.

For your (extra) information, here is an online calculator provided by the government (that incorporates the Guidelines) that quickly calculates how much child support someone should pay: Child Support Calculator.

To illustrate, if you refer to the calculator, you’ll see that someone who earns $50,000.00/year and has two children will pay $758.00/month. It’s that simple…typically.

Now, there are exceptions; but, this is the general rule that applies to the vast majority of families.

And, quite frankly, it doesn’t matter how the person earns the $50,000.00/year: it could be from investments, employment, or self-employment. It really doesn’t matter. And, on that note, it doesn’t matter how much someone’s expenses are, either....

In child support claims, it is very common to have the person who has to pay child support tell the judge/lawyers that they cannot afford it. They’ll explain that they have other expenses, that they just bought a new house, that they have other children, etc. But, in the end, it doesn’t matter.

Here’s the ugly truth: if you earn a particular amount of money per year, then it’s a ‘done deal’ – you pay ‘x amount’ based on the income you earn and the children you have to support. Your expenses are your problem and, if your expenses are too high, then don’t have those expenses.

Now, it may not surprise you to know that some people will tell a judge that they earn less money than they actually do, so their child support obligations are lower. Well, that doesn’t work…

Lawyers and judges are clever enough to calculate your income based on your expenses and your career. So, if you won’t provide an accurate annual income, one will be ‘assigned’ to you. And, you will pay child support based on that amount.

So, who exactly has to pay? Well, of course, biology is the big thing. If you’re a biological parent, then you’re going to owe child support.

But, what about former step-parents? Answer: a former step-parent is likely responsible for child support if he/she supported the child for at least one year and if the parent starts a lawsuit (against the step-parent) within one year of the support being last provided.

And, how long does someone have to pay child support? Answer: child support is payable for as long as the child is 18 years old or younger or is dependent on the parents. A child can be dependent on their parents if they are attending full-time university or if they have a medical condition (that prevents them from being self-supporting).

And, also know that dying won’t necessarily relieve you from paying child support. If a non-custodial parent passes away, then child support may continue to be paid from the person’s estate.

As a last general tip, try your best to resolve child support disputes, as well as other family law disputes, outside of court. You’ll likely save a lot of money and a lot of stress.

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 



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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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