Archive for the ‘ division of assets/liabilities ’ Category

You’ve Just Been Served – Now What?

Just been served with court documents by a burly stranger on behalf of your former spouse? Now what?

Follow these three simple, but crucial, steps, and discover what you, and your ex, still have in common.

Firstly, take a deep breath and some time to read the documents. But resist the temptation to respond by angrily calling or texting your ex to express your shock and outrage. There are several reasons for this, namely your ex may have no idea what the document actually says, and further the wording will typically be formal legal terminology dictated by your ex’s lawyer rather than your ex.

Secondly, ignore the natural urge to rip up the documents, or file them away, in the hope that if you destroy it, or ignore it, it will go away. It won’t.

Worse yet, in your absence a court can, and will, make orders. Orders which can be far harsher than they would have been if you had prepared a proper response, and also challenging and costly to overturn.

Next, with documents in hand, arrange a legal consultation with a family law professional – Scott Taylor – #102 – 19610 64 Avenue, Langley, 604-534-6361.  Expect to pay anywhere from 30 minutes to an hour or more of legal advice.

Don’t expect a comprehensive review from a harried family duty counsel, or take legal advice from your dentist, or a friend of a friend, whose only family law experience is being divorced multiple times!

Thirdly, following the consultation you will need to prepare , or have prepared ,your  formal written response, possibly also including a claim of your own. If you decide to prepare your own documents, at the very least, have them reviewed by a family law professional before they are filed, to ensure your legal rights are protected.

However, if you follow these three steps there is also another, potentially far more valuable, benefit to you.

By responding in an effective professional manner, both your ex, and their counsel (if any), will know you are taking matters seriously, and intend to take all necessary legal proceedings to vigorously protect and pursue your legal rights.

Consequently, you have just laid the groundwork to encourage a negotiated or mediated family law settlement. That’s because your ex is no more interested in costly, protracted legal proceedings, than you are.

You do have something in common after all, trust me.

It’s called common sense.

Better late than never!

Common Law Common Sense!

Shacked up? – Know your legal rights!

No – despite what you may have heard, or read,  about last weeks Supreme Court of Canada decision involving common law property rights, the law (at least as I see it) has not been radically changed.

What the Court did was provide some common sense guidance to lower courts, family lawyers and common law couples alike.

First, some background would be helpful. With divorcing married couples there is a legal presumption that all assets and liabilities will be divided 50/50. No such presumption exists for common law couples.  

For common law couples legal relief is based on trust principles, specifically the law of unjust enrichment. In other words if one spouse is “unjustly enriched” due to the contributions, and at the expense of, the other party, a trust claim may provide relief. Contributions can consist of financial contributions, or the assumption of domestic responsibilities.

Other factors identified by the Supreme Court as crucial in identifying “unjust enrichment” include the degree of economic integration. In other words did the parties maintain independent financial lives, or did they integrate their financial affairs.

Also important is the degree to which either party sacrificed their career for the benefit of the family, and the extent to which the parties intended to function, and organized their lives, for a common family purpose.

One potential example of “unjust enrichment” involves a spouse who sacrifices her career for the purpose of raising children, and assumes primary domestic responsibilities, while the other spouse amasses significant business, and personal assets.

Once “unjust enrichment” is determined Courts have the choice of awarding the deprived spouse with an interest in property, or a monetary award.

However, simply because there is a finding of “unjust enrichment” does not  automatically mean that there will be a 50/50 division of assets. Although, I believe it relatively safe to assume, the longer the length of the relationship, the more likely it will result in an equal division of assets.

So if you’re thinking about shacking up, you can’t say you didn’t know what you were getting yourself into!