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Law Matters - Jeff Zilkowsky

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.



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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. 



Divorce? Get out of my house!

In the wake of Valentine's Day, I thought I would write a column about family law. Ironic, I know…

This column’s topic isn't exactly pleasant or in the spirit of Valentine's Day, but it is useful information. If not for you, then for someone you know...

So, here it is: ever wonder what happens to the family home when a couple separates? Who gets to live in it? Do both partners have to share it?

After a marriage or a common-law relationship ends, both parties probably don’t want to continue living together, right?  So, what happens?

Well, the Family Law Act in BC (section 90) allows a judge to give one partner exclusive occupancy of the family home.

But, how does a person get that?  Well, the person who wants to have exclusive use of the home has to go to court and show the judge two things:

  1. That it is practically impossible for the two people to live together in the same home; and

  2. That it is more convenient for the person applying to court to stay in the home as the occupant (vs. the other partner staying in the home).

So, what is does all this mean? What exactly makes living with your ex-partner ‘practically impossible’? 

As you can imagine, what makes living together ‘impossible’ can vary from person to person.  Some people would find that just seeing your ex-partner would be impossible…  But, that isn’t good enough...

So, what makes it impossible to live with the other person?  Well, the following factors have been used to show that it is impossible for two former partners to continue living together: 

  1. Yelling and arguing;
  2. Belittling the other person;
  3. Growing marijuana;
  4. Playing loud music, disturbing the other spouse and children;
  5. Leaving anti-freeze out where the former partner's dog could drink it;
  6. Continuously leaving the doors of the home unlocked when the other partner is home alone; and
  7. Physical violence.  

The more ‘bad conduct’ that a former spouse displays, the easier it will be to convince a judge that the other spouse must ‘get out’.

So, for example, one incident of physical abuse would probably be enough to have the other person ‘kicked out’.

But, the opposite also applies…

So, a few incidents of your former spouse playing loud music will not likely get your former spouse ‘kicked out’. Instead, if that was all your evidence, the judge would likely not appreciate your use of court time… And, your application to get your partner ‘kicked out’ would fail.

Now, this is only the first step...

Next, you need to show that, of the two of you, YOU are person who should remain in the home. This is referred to, in legal circles, as the ‘balance of convenience test’.

Here, the court will consider several factors, including whether one partner earns significantly more money than other partner, allowing one partner to have more ‘options’ in finding alternative housing. Here, the ‘richer’ partner (who can afford to pay rent elsewhere) may be forced to ‘get out’.

The court will also consider which partner is the primary caregiver to the children.

For instance, if a stay-at-home father is the primary caregiver to the children, the court would more likely allow the father to stay in the home.

Imagine the opposite: if the father was ‘kicked out’, the children would be forced to leave the home (to stay with the father) or they would be in the care of the go-to-work mother who isn’t home often enough to care for the children. The court doesn’t want to disrupt the lives of children, so that’s why the father would have exclusive use of the home after the separation.

These court applications should not be taken lightly; they can be lengthy, bitter, and expensive. So, if possible, try to resolve your issues with your former partner amicably.

 

**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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Legal aid: horrendously underfunded

This week, I am writing about legal aid.

Yes, I’ve written about it before: Politics and Legal Aid in BC. But, it’s a crucial topic, so I am going to discuss it, again.

To start, legal aid is a vital program for our province. It’s VITAL.

But, despite it being so vital, very few people know much about it (until they need it, of course).

So, what is it?

Well, it’s a program that allows poor families and people to have a lawyer when they really, really need it. That’s basically it.

The legal system is complicated. And, lawyers can be expensive. And, unlike doctors, the client (and not the government) typically pays the lawyer fees.

So, that’s why legal aid is important: it’s a safety net, designed to catch people who genuinely need a lawyer, but who can’t afford legal fees.

So, what’s the status of legal aid in BC? Well, as you may be able to guess from my tone, it isn’t good...

At present, legal aid services are only provided to people who may go to jail or be deported from Canada or to people who are involved in a family dispute that involves violence, abuse, or a custody dispute (for children). AND, in order to qualify for legal aid, you must earn very little money.

So, that’s it. Doesn’t seem like much, right? Well, it isn’t... Legal aid is horrendously underfunded.

You may ask, “So, what is happening with legal aid going forward?” Answer: it’s getting worse.

Legal aid in BC is facing a big budget shortfall, which means that the legal aid program is going to have cut even more services. And, who does that hurt? You guessed it: poor families.

It is very sad. But, it isn’t THAT surprising because the BC Liberals have NOT been reprimanded for all their budget cuts to legal aid (and to the court system, generally).

Here’s some history...

After the BC Liberals took office in 2001, they slashed legal aid’s funding almost in half. And, with the cuts, many family law services and poverty law services (previously provided to poor families) were completely eliminated. In effect, a lot of poor families were ‘left on their own’.

In 2011, a report was given to the Liberals, recommending that legal aid be recognized as an essential public service. The report called for stable funding. The report was ignored.

Then, there was the 18 month job action by legal aid lawyers that was supposed to draw public attention to poor legal aid funding. But, that ended (and failed) recently.

And, what’s legal aid doing now? It’s asking the government for more money. And, what has the government said in response? Justice Minister Suzanne Anton said that she would be happy to discuss the issue, but that the province is already being generous. Generous?!

Our court system is crying out for adequate funding!

So here’s my advice: stop listening to the government’s propaganda regarding our justice system.

We have one of the best legal systems in the world. But, without money to fund it, it will crumble.

 

**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 working in the Lower Mainland, practicing primarily in personal injury, civil litigation, debtor/creditor, criminal, and family law.   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 e-mail Jeff at [email protected].  

Visit Jeff’s website at: www.JeffZilkowsky.com







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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