Ask a Family Lawyer

Our Legal Expert is Garth Edwards. Garth is a partner with the firm Cohen Buchan Edwards LLP based in Richmond. BC. Garth specializes in Family Law and is a strong proponent of collaborative legal solutions that protect assets and preserve relationships for all involved. His website is cbelaw.ca.

Garth Edwards, Family Lawyer

Garth Edwards, Family Lawyer

Legal Questions

Question #1 – “My common law partner and I have been together for 2.5 years and we have two young pre-school children. We are fighting a lot and I am currently living in our unfinished basement. We own the house, but it is in my partner’s name. I am afraid to move out because she has threatened to change the locks and said that she will not let me see the kids. I am afraid that I will lose our home and access to my children. What course of action do you recommend?”

Response #1 – First you and your partner need to decide where your relationship is going. A counselor can help repair your relationship if possible. A divorce coach/mental health professional in the collaborative practice can assist in the decision if available and if separation is the answer the coach can assist in preparing a parenting plan. If you stay together a cohabitation agreement can determine what happens to assets and how you share the kids if you come apart in the future and thus relieve existing tensions. Collaborative lawyers can help negotiate this agreement. If reconciliation is not possible a separation agreement will be necessary. This is a contract that deals with all issues and concerns you may have. A collaborative lawyer will help you do this without taking destructive and costly legal proceedings. Unless there is unbearable tension you should remain in the home until at least an interim/temporary agreement is in place.

Question #2 – “My ex-wife and I have a court order that states that we have shared custody and guardianship of our two pre-teen children, but I have primary residency. Last Friday, my ex picked up the kids for their usual weekend visit, but this time she is refusing to give them back; she is not even letting them go to school. What can be done immediately to have my kids returned to me and what preventative measures can I take so that this never happens again?”

Response #2 – The new Family Law Act (FLA) automatically adopts new language that you need to learn. Gone is “custody” and “primary residence”. Now we talk about guardianship, parental responsibilities and parenting time. The FLA has new powers to deal require “compliance respecting parenting time or contact with a child”. If your ex will not participate in a collaborative process to resolve these problems you need to see a lawyer and/or get to court to enforce and/or vary your order. If she refuses to cooperate the court can require she participate in family dispute resolution and attend counselling, order compensatory parenting time, order her to compensate your expenses, order supervision and require her to give security. Ultimately the court may change suspend or terminate her parenting time.

Question #3 – “What are the factors considered, by a judge, in determining whether or not an ex-spouse is entitled to spousal support and how can I find out how much spousal support is to be paid?”

Response #3 – Lawyers use a program called Divorcemate to calculate spousal and child support. Spousal support is set out in a range from low to mid to high. Just because the program gives a range does not mean your spouse is “entitled” to support although that is most often the case. There is a free online resource called My Support Calculator which does much the same thing. Some of the factors a judge would consider are: the difference in your incomes, children, economic advantages and disadvantages to both of you arising from the relationship, length of relationship, ages of the parties, education, employment history and any existing written agreements. The goal is to promote, as far as practicable, the economic self-sufficiency of each spouse within a reasonable time.

To submit a question, you can do so at webmaster@themenscentre.ca

3 responses to Ask a Family Lawyer

  1. I’ve been legally separated for over 2 years do I have to keep my ex on my dental plan?

  2. Reply from Garth Edwards:

    By “legally separated” do you mean you have a separation agreement or divorce? Have you been living separate and apart for two years?

    This is not a yes or no question. Is there a legal requirement to keep a spouse on (extended health or) a dental plan? Technically no. However your spouse may not be able to acquire the benefits on his or her own or at a reasonable cost. If you cancel the coverage the spouse may incur high expenses which he or she may then claim from you.

    If you plan to cancel the coverage give reasonable notice of at least 30 days so alternate coverage may be acquired if possible. Your spouse may want to pay your cost of carrying the coverage so you are not out of pocket.

    A separation agreement would address this issue.

    • My ex filed for social assistance even through she is gainfully employed. Even though she did not qualify the act of applying enabled her to get a free lawyer from the government to come after me for spousal support. 45 percent of my net income goes to child and spousal support. I pay more spousal support than child support. She lives with her parents, gainfully employed and has no expenses. My experience in court is that a spouse who lies, distorts, and manipulates by using a strong lawyer will get what they want -not what they need. I appreciate there are women out there who the system has cheated. It has been my experience that men have no rights with their children. Therefore when they stand in front of a court they are seen as insignificant and are 100 percent at the mercy of the woman who may want everything.

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