At Greig, Wilson & Rasmussen LLP, we have decades of experience in family law, and pride ourselves on a sensible approach to matrimonial matters.
Many of our "first time" clients and visitors want some basic information about family law. They are concerned about "common law" rights, the court process, divorce, and other issues. They need some information and some time to consider their options. Although many of the issues in family law are not capable of a short/quick explanation, we hope this column will assist.
1) I've been living in a "common law" relationship for 5 years. We have a house. Do I have any claims to that property, even if I'm not on title?
A: probably yes. Assuming that you made some direct or indirect contribution to the purchase, maintenance, or improvement of the property, you have a claim. The fact that legal title to the property is registered in the name of your former spouse is likely irrelevant.
2) My husband is insisting that we enter into a Separation Agreement. He says if I don't agree, he's going to Court. What should I do?
A: get some advice from counsel. Your rights and obligations can probably be explained with some particularity in an interview. If a Separation Agreement can be settled upon, that's fine...but you should not be pressured into making a decision in the absence of full advice. Remember that a Separation Agreement is an agreement, and if you don't "agree", the matter cannot be resolved that way. Going to court is really a "last resort" that should be reserved for cases where efforts to find a consensual resolve have failed.
3) My wife says that if I don't take her offer (to settle our case) I'll have to pay her lawyer. Is that true?
A: probably not. In BC, court costs (if any) are a matter left to the discretion of the court. In many cases, there are no court costs payable, except if one party has been unreasonable or recalcitrant, or has misbehaved. However, in some family cases, costs are awarded to the victor in a suit (even where there has been no misconduct) but "court costs" are not payable to the lawyer--they are paid to the party. Additionally, remember that court costs are not the same as "legal fees", and are typically a fraction of what a party actually paid counsel.
4) Since separation, my spouse has lodged a "CPL" against our house. What's that?
A: A "Certificate of Pending Litigation" is a lien or "charge" that's lodged against title to real property. It is intended to serve as notice that there is litigation ongoing (or "pending"). It would prevent a transfer of title, or the registration of a new mortgage. A CPL is part of the normal "process" that often occurs at the outset of a lawsuit where property is involved. This lien can be removed by Order or agreement, but it's a matter that should be discussed with counsel.
5) My husband has left the house, and insists that I sell it. Is that necessary?
A: perhaps, but usually not instantly. Get some advice first. All of the circumstances relating to possession of the home (the family history, the equity position, market conditions, children, alternatives, and other facts and matters) will be relevant. If you and your children want to remain in the home, that's a matter that can often be agreed to (on certain terms and conditions) or Ordered by the court.
6) My spouse and I have settled everything. All we want is a divorce. Do we have to go to Court? What will it cost?
A: A court attendance is probably not needed. An uncontested divorce is a Court Proceeding, but you can probably obtain the divorce order without either of you ever making a personal appearance. Proper "paperwork" is the key. The Self Counsel Press Divorce booklet is excellent for this purpose (if you want to "do-it-yourself"). It's about $35. The disbursements (out of pocket expenses you'll incur) will probably be in the range of $250 to $450. If you hire us to do the divorce, we can usually complete the project in about 12 weeks, and the aggregate cost will be more than $1000 and usually less than $1500. If you do the work yourself, you'll see why we charge for it.
7) My wife and I agree on terms of separation. What's a separation agreement cost?
A: Funny you should ask. My book, entitled "Separation Agreement" is available at Chapters, and most other book stores, and costs about $25.00. You can buy it online as well, by going to www.self-counsel.com. The book is ideal if your terms are agreeable, and if you have a relatively simple case. If, however, you have tricky pension plans, children's issues, overseas assets, tax problems, or other difficult issues, you may want to meet with a lawyer. The cost of a properly negotiated Separation Agreement prepared by a lawyer is usually more than $1000 and less than $4000.
8) I have issues respecting custody, access, guardianship, and support. Where can I get help?
A: you can talk to the Lawyer Referral Service, or to duty counsel at any one of the several courthouses nearby. In addition, you may want to contact a lawyer for a "free consultation" so that you can explain your worries, and get some good general advice. Be cautious about any specific information you obtain from the internet.
9) my friends tell me that there are Spousal Support Rules that determine my entitlement to alimony. Is this true?
A: somewhat. A few years ago, the Spousal Support Advisory guidelines were created. They have since be adjusted, updated, and approved by courts in this Province. While the "guidelines" are not absolutely binding on courts at this time, they are persuasive, and most lawyers and Judges give them considerable weight when assessing support issues. They do not, however, determine matters, and do not "decide" entitlement. Moreover, to make good use of the "guidelines", the intended payor's income must be known. Finally, the calculation itself is not always straightforward. Most lawyers possess a computer program that calculates the range of support that's applicable, and that's often very helpful in the assessment.
10) My spouse tells me that if I get a lawyer, the "gloves are off". What should I do?
A: it's not wise to barter from a position of weakness. The rights that you have (and your obligations) are a function of law, not the dictates of an angry spouse. Get some advice. Your consultation with a lawyer is private and confidential (we call that "privileged"). If, after you learn about your rights and obligations, you decide to negotiate directly with your spouse, you can----but it's best to do so with "eyes wide open".
11) I've heard different things about Supreme and Provincial Court. What's the difference?
A: This is not easily explained. Provincial Court has jurisdiction (power) over children's issues, and support, and related topics. A Provincial court cannot grant a divorce, or divide assets. The process in Provincial court is thought by some to be less costly, and more user friendly. On the other hand, some folks say that you must have counsel in Supreme Court, and that the "system" there is more pricey, but faster. There may be some truth in this. What is certain is this: only Supreme Court can grant an order for divorce or make an order to divide family assets. And while both courts have strengths and weaknesses, the jurisdictional "overlap" is a topic that's needy of consideration.
12) I don't have much money, but I've been told that I must have a "retainer" to see a lawyer. What is that? Do I need a retainer?
A: The word "retainer" has several meanings in law. Your question refers a "money deposit", paid to a lawyer, for the purpose of hiring the lawyer. Some lawyers require a retainer (often $1000 $2500, $5000 or more) before they meet with a new client. Other lawyers are willing to offer a free "no-obligation" consultation without a retainer, to give the prospective client some basic information and advice, and so that the prospective client can know if he or she wants to retain that lawyer. Here, at Greig, Wilson & Rasmussen LLP, you don't need a retainer to have a first meeting with counsel. And, in some cases, we work on a contingency fee where you don't pay fees unless there's success, and then, and only then, it's a percentage. Most family law cases cannot be handled on a contingency, but there are some exceptions.
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