Considering Adoption?

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Adoption is the process of changing a person’s legal parentage and can come up in many ways, including:  adoption through a licensed agency, adoption of children in care, private adoptions, and step-parent adoptions.   Each type of adoption has it’s own process, but all require the final approval of the court to become official.   If properly done most adoptions will be a matter of correctly filing the necessary paperwork and will not require an appearance in court.   Our lawyers are familiar with the rules and regulations around adoption and the local court practices and can help make this final step as fast and easy as possible.   In those rare cases where advocacy in court is required our lawyers have extensive experience in appearing at all levels of our court system.

Many couples go through the adoption process with a licensed adoption agency that can help place infants from parents in British Columbia and sometimes from oversees in new families.   Others take in children who were permanently removed from their parents care by the Ministry of Child and Family Development because their home was unsafe.   Other people want to adopt the child of a relative, which is called a private adoption.  In all cases the process can be as long and daunting as it is rewarding.

Our lawyers help parents understand the process and help them complete it as seamlessly as possible.

Consent of Child and Biological Parents during Adoption

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Are you considering adopting a step-child, or the child of a friend or family member?

Before you do so you should know that adopting a child removes all rights and responsibilities from the original parent and gives them to you.   Depending on your situation there may be options short of adoption that would give you the legal standing you need without entirely removing the parents from the picture.

If you want to proceed with adoption you will need the consent of the child’s parents and guardians, as well as the support of the child.   Depending on the child’s age this may come in the form of a simple affidavit or could be the report of a social worker who meets with the child to talk about adoption.   If you cannot find a parent to obtain consent there are options to ask the court to dispense with that consent.

Our experienced lawyers can help you discuss your options, gather the necessary forms and consents, and guide you through the process.

Understanding Rights & Responsibilities of Adoption

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Do you have a stepchild?   Are you the main caregiver for a child you are not legally the parent of?   Are you considering adoption?

Adoption can be an excellent way to recognize that you are a child’s parent and always will be.   An adoption also gives you all the rights of a parent.   On the other hand an adoption comes with all the responsibilities of a parent.   This can mean child support obligations, and requirements to provide for that child in your will.

Adoptions also cancel the rights and responsibilities of the original parent.  That can have an impact on the rights of your child to support and inheritances from their original parents.   When you adopt a child you should consider all these issues and make sure you understand before you proceed.

Our experienced lawyers can meet with you for a consultation to discuss how adoptions are done, what is required, what the costs are, and how it will impact your rights and responsibilities, the child’s rights, and the rights and responsibilities of the original parents.

Is adoption expensive?

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If you’ve worked with an adoption agency you know the process of adoption can be long, expensive, and complicated. What you may not know is that to finalize an adoption you need to Petition the Supreme Court of British Columbia for an order making you the official parents of your new child. Although this process is just a matter of filing the necessary paperwork, it is a step that can be very confusing, expensive and time consuming unless you have experience dealing with the courts.

You already have your hands full with your new family, let our lawyers take care of the rest. For a one-time fee of $2,500 our lawyers will work with you, the adoption agency, and the courts to help you finalize your adoption.

Can I stipulate how my ex spends child support payments?

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Imagine this not too uncommon scenario …
You pay child support to your ex spouse.  But, you are concerned about your ex’s spending habits. You go on social media and see your ex taking selfies at the mall, bragging about buying the newest (most expensive) gadgets. You see your ex is driving a brand new vehicle. She, or he, even goes on vacations to luxurious resorts. You are likely concerned that the child support payments that you are making are not being used for the children but rather for your ex’s expensive lifestyle.  

What can you do?

The short answer is … not much.  Payor parents are often surprised to learn that they can’t decide how the other parent spends the child support.

Child support payments are, in almost all instances, determined by reference to Child Support Guidelines.  If the child or children reside with one parent at least 40% of the time then there is a “primary parenting” arrangement.  This means that the non primary parent (the parent with less than 40% of the time with the children) pays child support to the other parent.  In this case, the amount of support is calculated based on the non primary parent’s income.

For example, if there are 2 children and they reside primarily with mom, and dad earns a gross annual income of $75,000 in British Columbia, then dad’s monthly basic child support obligation is $1,164.00.  A link to BC’s child support guidelines can be found here –  https://laws.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-1004611 .  Beyond basic child support there may also be “special or extraordinary expenses” for the children (known as “section 7 expenses” under the Child Support Guidelines), which are typically paid for proportionally based on each of the parents’ respective incomes.     

The purpose of child support is, in essence, to ensure that children are not economically deprived because their parents have separated.  From the children’s perspective, in an ideal world, their parents would still be together to provide emotional and financial support for them.

Thus, if you are paying child support but feel that the recipient is wasting the money, you may feel obligated to do something about this.  Maybe you want to pay the money directly to the child.  Maybe you want to get a Court Order directing how the recipient parent will spend the money.  Maybe you want to stop paying child support altogether.  However, none of these are viable options.

Various courts across Canada have held that it is up to the parent entitled tor receive child support to determine how she or he spends the money in the best interests of the child (or children).  The fact that child support payments indirectly benefit the recipient parent does not mean that the child support payments can or should be adjusted (for further reading, the Alberta Court of Queen’s Bench recently addressed this issue in an April 24, 2020 decision from that court – BDM v. MMM, 2020 ABQB 288 http://canlii.ca/t/j6mh6 ).

Ultimately, if you are concerned that your spouse is seriously misusing child support payments, and is unable to manage their finances such that it is affecting the best interests of your children, you may need to consider adjusting the parenting arrangement that is in place.  In this case, the children’s best interests may be met by changing which parent they primarily live with.

If you have questions about child support or adjusting a parenting order or agreement, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to best move forward.  
 

         

 

       
 
     

Coming Through COVID-19 – Maybe a Marriage Contract is in Order?

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I was driving recently and a song came on the radio that caught my ear.  It was the 70’s soft rock hit “Make it With You” by Bread.  The song starts as follows:
               
“Hey, have you ever tried
                Reaching out for the other side
                I may be climbing on rainbows
                But baby, here goes …”
 
The chorus goes “I want to make it with you … I really think that we can make it, girl.”
 
This might sound cheesy, but all relationships are about expectations – including marriage.  Even if your marriage is on the rocks, it may be possible to get things back on track.  
 
There’s lots of news lately about the anticipated rise in divorces and separations as we move through the COVID-19 pandemic.  There could be a number of reasons for this, such as families having less income due to one or both spouse losing employment, or the sudden shift in family dynamics when spouses and children are cooped up at home. 
 
This is where an experienced family lawyer can help, namely in drafting up a marriage contract, otherwise known as a post-nuptial agreement.  These agreements are written contracts made by spouses (after marriage) that set out how they want to move forward, as well as the legal rights and duties of each spouse if the relationship ends.  Examples of things that might go into such a contract are:
•    Domestic responsibilities
•    Parenting responsibilities
•    Management of finances (e.g., who uses certain back accounts)
•    Division of property and debt if the marriage ends
•    Spousal support if the marriage ends
So, before deciding you need to end your marriage ask yourself if it is worth sitting down with your spouse to talk about expectations.  A family lawyer can help you condense your expectations in writing to make a legally binding marriage contract.
If you have questions about drafting a marriage contract, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time. 

Darren Schmidt maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.  

What is a Power of Attorney and Why Do I Need One?

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What Incapacity and Estate Planning Documents Do I Need?
We recommend you have a Power of Attorney, Representation Agreement, and Will.
What Is a Power of Attorney and Why Do I Need One?
A Power of Attorney is a legal document that you can use to appoint a trusted person(s) to make financial and legal decisions for you, in the event you are incapable of doing these things yourself while you are alive.  The person you appoint is called your “attorney”. You can give your attorney broad powers to step into your shoes as needed to deal with your finances and your real estate or your business and legal matters, OR you can place limits on the power that you give them. A Power of Attorney is a valuable part of your estate and incapacity planning.
Who Should I Choose as my Attorney?
You should appoint someone you trust because a Power of Attorney is a powerful document. Many people choose their spouse, a close family member or friend. A person does not have to agree to act as your attorney, so you should talk to them ahead of time and make sure they are up for taking on the job.
You can appoint more than one attorney, with different or the same authority. If you appoint more than one, they must act unanimously unless you state otherwise.
What Are the Duties of My Attorney?
The Power of Attorney Act of B.C. confirms that an attorney must act honestly and in good faith, must exercise the care and skill of a reasonably prudent person, keep proper records for inspection, keep your assets separate from your attorney’s assets, and always act in your best interests.
Does a Power of Attorney Allow my Attorney to Make Health Decisions For Me?
No. If you want to appoint a legal representative to make personal and health care decisions for you if you cannot make these decisions on your own, you will need to make a Representation Agreement.
Can I Cancel my Power of Attorney if I Change My Mind?
Yes. As long as you are mentally capable, you can revoke/cancel a Power of Attorney.

We at Nixon Wenger LLP specialize in estate and incapacity planning. Please contact us and we would be happy to help you prepare a Power of Attorney as part of your complete estate and incapacity plan.

Elise Allan is a Partner at Nixon Wenger LLP who works extensively with individuals, assisting them in such matters as the purchasing and selling of real estate, preparing Wills, Powers of Attorney and Representation Agreements as well as obtaining Grants of Probate.

COVID-19, Child Support and Layoffs

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When parents separate, their children are entitled to child support.  The Child Support Guidelines set out how child support is determined.
 
The amount of child support depends on the income of the parent who pays the support, or both parents’ incomes if they share time with the children.  If income goes up, or down, normally this will result in an adjustment to child support payments.

What Happens to Child Support if the Parent Paying Child Support Loses His / Her Employment?

The COVID-19 pandemic has had a significant impact on all of our lives.  Most sectors of the economy have been affected and many businesses and employees will face a significant decrease in earnings.

So, what happens if a parent is laid off or terminated from their job during the COVID-19 pandemic but has been paying child support?

All parents in British Columbia should be aware that as of March 20, 2020 the various courts in this province have suspended regular operations.  Accordingly, child support disputes likely will not be heard by the courts until they resume regular operations following the COVID-19 pandemic.  Thus, parents are encouraged to find a workable solution to any child support disputes during this time.

If you are paying child support and find yourself laid off or terminated from your employment, the best course of action is to immediately inform the other parent.  Be open and transparent and let them know if you will be receiving any of the benefits offered by the provincial or federal government, such as employment insurance.  Try to find a mutually agreeable solution so that you can still pay some support rather than stopping support altogether. 

If you are paying support payments to the Family Maintenance Enforcement Program (FMEP), also inform them if your employment status changes.  On March 19, 2020, FMEP posted the following update on its website in regards to the COVID-19 pandemic:

“If you are a payor, we acknowledge you may have difficulty [during the COVID-19 pandemic] paying your full amount of maintenance that is due. You are, however, still required to pay the maintenance owing under your order or agreement. If you are unable to make full payments it is very important that you contact us by signing into your web account and sending a web message …” https://www.fmep.gov.bc.ca/whats-new/

If you are concerned about paying or receiving child support payments, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward in this uncertain time.

Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.  

Impacts of COVID-19 on Parenting and Custody Matters

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The COVID-19 pandemic has caused unprecedented levels of uncertainty in all aspects of our lives, including in the operation of our courts.  As of March 20th, the various courts in British Columbia have suspended most of their operations. 

Currently, the courts in BC are only hearing essential and urgent matters.  These matters include issues relating to the safety of a child or parent due to a risk of violence; wrongful removal of a child from a jurisdiction; or matters relating to the well being of a child.  All other matters are suspended and will not be heard by the courts until at least May, 2020. 

My ex and I share time with our child – what can we do in an age of “social distancing”?

For most of us, the phrase “social distancing” didn’t exist until a few weeks ago.  It’s now become our reality.

If you and your ex spouse have kids and share them between your two homes, what do you do?  Do you exchange the kids between two houses?  Do you send the kids to your ex’s house?  Should you protest if your ex won’t send the kids to spend time with you?

The only clear answer is that there isn’t a clear answer.  Each case will be dependent on your specific circumstances. 

The best approach parents can take is to consider only the best interests of the kids.  In fact, this is the only thing a court will consider when deciding an appropriate parenting arrangement.  Section 37 of the British Columbia Family Law Act sets out a number of factors a court must consider when deciding what is in the best interests of a child.  The most important factors in light of the COVID-19 outbreak are:

•    the child’s health and emotional well-being;
•    the ability of each person … who has parenting time or contact with the child, to exercise his or her responsibilities;

Although the COVID-19 pandemic is new, courts in BC have considered the issue of when a parent has a contagious virus and seeks parenting time with a child.  In D.M.M. v. D.F., 2015 BCPC 0310, the father previously had the Hepatitis C virus and the evidence at trial showed he did not take sufficient care of his hygiene such that his daughter may have been exposed.  The father said he had recovered from the virus but the court said “while his freedom from the virus is obviously very good news, I remain concerned about [his] attitude towards [the daughter’s] safety, since he was contagious at the time he was with her.” (para 72).  This finding, among other findings at trial, resulted in an order that the mother have primary care of the daughter. 

Thus, it is imperative that parents take all precautions and follow the advice from governments and health authorities during the COVID-19 pandemic.  Our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward in this uncertain time.  
Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.  

Executors

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In your will, the executor is the person you name to settle your estate after your death. The executor is responsible for, among other things, determining what your assets and liabilities are at the time of your death, safeguarding those assets until they are distributed to the beneficiaries, paying your debts and filing your tax returns. They are also required to gather information about your beneficiaries and family members, including confirming legal names and addresses and identifying anyone under the age of 19. Your executor will apply for a grant of probate if one is required and ultimately distribute your assets according to your wishes.
It is important to choose your executor carefully to make sure your estate is settled efficiently and effectively. An ideal executor is someone who is organized, will deal with your assets and relatives objectively, and has loads of patience. Having an executor who lives in the same area as you is helpful but not necessary. It is also important that your executor survives you and has capacity at the time your will comes into effect.
Before appointing someone as your executor in your will, it is good practice to confirm that he or she is able and willing to take on that role. An alternate executor should be appointed in case the first executor can’t act.
There are a few circumstances where the intended executorship might fail:
1.    If you die before you have prepared a will, it is called dying intestate. The court must appoint someone to administer your estate. The court will look to who has the most interest in the estate – typically your closest surviving family member. (For more information on dying intestate, see Dying Without a Will

2.    If the executor named in your will declines, dies or is incapable of taking on the role, and you have no surviving or willing alternate executors, the court must appoint someone to administer your estate in accordance with your will. This person might not be permitted to act as administrator without posting an estate bond to protect creditors and beneficiaries who minors or incapable in the event the estate assets are administered improperly.

3.    If your sole or last surviving executor (“Your Last Executor”) received a grant of probate and then becomes incapable or dies before finishing his or her duties, the executor appointed by Your Last Executor in his or her will may be in a position to take over the administration of your estate. This is called the “chain of executorship” and it will not apply to all cases where Your Last Executor can no longer act before the administration of the estate is completed.

4.    The chain of executorship is broken if Your Last Executor left no will or did not appoint an executor or has no surviving willing and able executors. In those circumstances, the person with the most interest in your estate – typically a beneficiary – can apply to be substituted as the administrator of your estate.
Be sure to review your will regularly and be aware of the health and personal circumstances of your primary and alternate executors. If one or all of your executors are no longer able to act, make arrangements to update your will.

Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.
 

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