Welcome to Nixon Wenger LLP
The Family law group at Nixon Wenger LLP deals with all issues concerning divorce and separation including child custody, guardianship and access, child and spousal support, and division of family assets and debts, including complex issues arising from the ownership of businesses and the implementation of trusts. Our lawyers also regularly help clients with domestic contracts, including pre-nuptial contracts, co-habitation agreements and separation agreements.
Our family law lawyers are highly skilled trial lawyers and experienced in settling matters through negotiation and mediation. Our lawyers act for clients throughout the province and can help guide you through the complex maze of family law.
Family Law Services
Divorce & Separation Agreements
The end of a marriage or a common-law relationship is a difficult time whether it involves finding a way to co-parent children, splitting what was formerly household income through support arrangements, or deciding who keeps which assets and debts. These are all things that need to be resolved before people can settle into their new lives. Although the courts are available to help figure these things out most people will be happier if they can avoid that experience and work out an agreement between them. A separation agreement has the advantage of being considerably cheaper and faster than litigation. It also has the advantage of being able to implement more creative and personalized solutions than the courts one – size fits all approach. When we are helping people in court judges often say people will be happier if they come to an agreement they can live with and that makes sense to them, rather than have a solution dictated by an outsider who only has a few days to learn about their situation. Our lawyers can help you understand your rights and obligations and negotiate terms of an agreement that make sense for you.
Crafting an agreement comes with many complexities and potential pitfalls that couples may not think about, such as the tax implications on dividing property, which parent can declare child tax benefits, how to sell and transfer shares in a company, how to divide pensions and other investments, etc. Our lawyers are knowledgeable and experienced in all areas typically dealt with in separation agreements and will help guide you through the process to ensure you avoid those pitfalls.
Some couples are able to work out their differences on their own or with the help of mediators and agree on the basic terms of a separation agreement. Although BC law does not require a lawyer to draft the separation agreement or to provide couples with legal advice, doing so can avoid a large host of problems. Independent legal advice can help you understand what is fair in the eyes of the law, think of issues you may not have considered, and provide possible solutions that you may not have thought of. Our lawyers can also help ensure your agreement is written in a way that the court will uphold it and enforce it if someone decides not to follow through. In addition some banks, lenders, pensions and other institutions will require an agreement to be written a certain way and to have independent legal advice before they will move forward with their services.
Our lawyers have experience in negotiating, drafting, reviewing and challenging separation agreements in court and are ready to help.
Marriage & Cohabitation Agreements
It is a regrettable fact that many marriages will end in divorce. The process of divorce can be very difficult, costly, and complex. Most people don’t think about what happens at the end of a relationship until it happens at which point they search for a lawyer to learn their rights and responsibilities and how to navigate the process. This can be especially difficult when trying to deal with the emotional and practical burdens of separation. In order to try and avoid problems down the road many couples will choose to enter into a Marriage Agreement. A properly drafted marriage agreement can help ensure everybody knows how things will work if they ultimately separate, which can make the process much faster and easier. Together with proper wills and estates planning a good marriage agreement can also help protect spouses if their marriage ends by death or incapacity.
The laws in British Columbia also allow people to change their rights and responsibilities at the end of the relationship if they do so through a properly written agreement. This can include terms that protect assets and avoid spousal support. When crafting an agreement it is important to be aware of the ways that these agreements can be changed or rejected by the courts to ensure the agreement is drafted to provide the greatest protection possible. Our lawyers have experience drafting agreements and litigating to challenge or change agreements that are unfair. No matter what your goals are in drafting an agreement, your age, or wealth our lawyers can help craft an agreement that is right for you and that will stand up in court.
Couples who choose not to marry but still live together in a romantic relationship for more than two years, will find themselves in the same situation as a married couple when it comes to their property and obligations to support one another after a separation, even if that wasn’t their intention. To make sure that everyone knows and sticks to the expectations in the relationship an agreement is a very helpful tool. As above the agreement can simply clarify the law and process for everyone involved or it can change how that process will work. In some instances an agreement can even avoid a marriage-like relationship where good friends or roommates may otherwise be at risk of finding out that they are effectively married.
Division of Family Property
The breakdown of a relationship or marriage can be an emotionally charged experience for separating spouses, and the splitting of assets and debts can add confusion and complexity that is difficult to navigate.
There is no magic formula to the division of family property, but the starting point is an equal division of all assets and debts that were accumulated during the relationship or marriage, including real estate, business, bank accounts, investments, pensions, consumer debt, loans, lines of credit, overdrafts, and mortgages. There are exceptions to the rule of equal division, such as gifts from a third party, inheritances, personal injury damages, and assets or debts accumulated prior to the relationship or marriage. Although the starting point of equal division may seem simple enough there are complex issues that arise in every case concerning tax implications of transferring property, dividing public or private pensions and investment accounts, and transferring or selling shares or assets in a company or trust. Our lawyers are knowledgeable and have experience with all facets of dividing property after separation and can help you navigate negotiation and settlement or in the event you need to take the matter to court.
The lawyers at Nixon Wenger have handled hundreds of cases of property division, and can assist with the valuation of property, determination of value for division, whether or not an equal division of property is the most appropriate approach for your particular circumstances.
High Net Worth Assets
The lawyers at Nixon Wenger are experienced in handling the division of high net worth assets, complex corporate holdings, and property in foreign jurisdictions. Although Canadian courts do not have jurisdiction over assets in other countries, the courts in Canada have tools to trace those assets and account for them to ensure there is an equitable division of property.
Determining the value of a business, pensions, real property, art and other valuable possessions may require the expertise of business valuators, actuaries, or appraisers, and we work with various professionals to determine the true value of family property.
Our lawyers also have experience assisting divorcing spouses where the one spouse is hiding or selling assets. In those cases, it is important to move quickly to secure assets and we have the knowledge and tools to guide you through that process. These are complex cases involving multiple areas of law. The issues are complex and legal advice is highly recommended, make sure you hire the right team to protect the assets you have worked so hard to acquire.
Spousal Support & Child Support
One of the most common and contentious issues after a separation is whether one spouse needs to pay support to the other. Spousal support or alimony (the US term) are court ordered or agreed payments from one spouse to the other, to alleviate the financial impacts of separation. When couples separate they are often on unequal financial footing, particularly where the couple had a traditional relationship with one party staying home to raise the family while the other worked and developed a career. Spousal support is often the way to alleviate that financial inequity.
Spousal support is not an automatic right or obligation of separating spouses, even where there is a significant difference in the income of the spouses at the time of separation. A person’s entitlement to support is dependent on several factors, and where possible, separating spouses are required to work towards self-sufficiency.
The amount of spousal support and how long it should be paid is determined on a formula and there are several online calculators to help you estimate the amount of support you may receive or have to pay. However, spousal support is not a black and white issue and there are many factors to consider that could affect the amount of support or whether support should be paid at all. It is also important that clients understand the tax implications of spousal support and the different tax treatment depending on how support is paid, whether it be a large lump sum amount or monthly amounts. Our lawyers have extensive knowledge and experience in helping clients to resolve their spousal support claims.
Parents and guardians of children have an obligation to financially support their children. After separation, that financial support takes the form of child support payments between the parents. If you are the primary parent and the children are with you the majority of the time, you will be entitled to receive child support based on your ex-spouse’s income and determined by the Federal Child Support Guidelines (BC Tables). If you and your ex-spouse share custody of your children, you will each be responsible to pay an amount of support to the other, again based on your incomes. Because child support is based on income, it is intended to be revisited each year with increases or decreases in income. It is important to resolve issues of child support early on, either in an agreement or court order. Our lawyers can guide you through determining an appropriate amount of support and how to ensure that you continue to receive appropriate support going forward. Child support is the right of the child and cannot be waived by either parent, and it is payable for all children under the age of 19. For children over the age of 19 who are still dependent on one or both parents, the situation is not black and white, and legal advice is recommended. Often child support is still payable, but determining a reasonable amount of support requires an assessment of several factors, including the reason for the child’s dependence, what the child is doing to support him or herself, and the parent’s ability to continue to support the child. Our lawyers are experienced in assisting clients with child support claims for young children, and for children over the age of 19.
One of the most common questions clients have is concerning the parent’s obligation to pay for expenses such as the children’s extracurricular activities, tutors, braces, private school fees, and other such expenses after separation. These types of expenses fall into the category of ‘special and extraordinary expenses’ and are considered separately from basic child support. In most cases, those expenses are shared between the separated spouses, in amounts proportionate to their incomes. So if you are a high income earner and your ex-spouse earns significantly less, you may be required to pay the bulk of those expenses. Determining which expenses fall into this category is not straightforward, and it is important for parents to seek legal advice prior to starting to pay for an expense that may be covered by basic child support. Our lawyers have handled thousands of cases involving child support and special and extraordinary expenses and can assist you in determining your rights and obligations.
Custody & Parenting Arrangements
Custody, guardianship, primary residence, parenting time, and parental responsibilities. These are all legal concepts that must be tackled when a couple separates and have children together. Although some amicable couples are able to work these issues out with little to no conflict, for most separating couples they need help to find the best path forward for them and their kids.
When it comes to parenting arrangements and decision making for children the only concern for the court is what is in children’s best interests. Of course in many cases parents do not see eye to eye on the best interests of their children and in those cases the court may need the assistance of an outside expert who has met with the family and the children. In rare cases where a parent is absent or otherwise unable to care for the children, the other parent may need to seek sole custody and decision making powers. Whether you need advice on the best schedule for shared parenting, or on seeking sole custody of your children, our lawyers have handled thousands of custody and parenting cases and can assist you in negotiating and drafting an agreement or representing you in court to obtain the orders you need.
Child relocation is relatively common in family law, but that does not ease the burden that parents experience when they are faced with living away from their children.
Often, relocation cases arise when one parent wants to move with the children, but also includes situations when a parent intends to move without the children. Relocation cases are difficult to resolve and often result in litigation.
The Court’s primary consideration is the ‘best interests of the child’, not the preferences or needs of the parents. When faced with relocation cases, the Court considers all of the opportunities for the children at the proposed new community, but maintains a strong focus on maintaining the children’s relationships with both parents. Courts can be reluctant to separate children from a parent that has been their primary caregiver, or alter a shared parenting arrangement, adding to the complexity faced by parents looking to move. The Court’s objective is to preserve the existing parenting arrangement, as much as possible, along with the roles of each parent.
The lawyers at Nixon Wenger are experienced in relocation cases, and can help you navigate your legal options and assist you in negotiating or litigating your particular situation.
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.
If you are afraid of a family member, including your ex-spouse, you may need to obtain a protection order from the court. If the court determines that you or your children are at risk of family violence then the court can make an order restricting the other person from contacting you and attending at certain places, like the family home, your workplace, school, and the children’s school or daycare. The court can also order that the police remove the person from any place, such as the family home. Other orders the court can make include restricting the ability of the person to possess weapons or firearms or even possessing a license or registration relating to a weapon or firearm. Once a protection order is granted it is filed with the local police department, which ensures the police will respond quickly in the event the person breaches the protection order..
Family violence is not restricted to physical violence. The courts in British Columbia have widened the definition significantly to include psychological, emotional and financial abuse, and coercive and controlling behavior. If you are worried about your safety or your children’s safety and need assistance quickly, our lawyers can help you obtain a protection order.
Our Family Law Team
Family Law FAQ
When should I contact a lawyer?
We recommend that you obtain legal advice before you start living with someone or get married. Ideally, you would review with your potential partner, when times are good, how you would handle various issues such as: What are your respective financial responsibilities? What happens if one of you dies? What happens if you separate? You can formalize your intentions in a written Cohabitation Agreement or Marriage Agreement. If you are at the point of considering separation or have already separated, we recommend that you obtain legal advice as soon as possible. In can be helpful to obtain legal advice before you separate from your spouse so that you can properly plan for your separation and you are aware of the types of information and documentation that will be useful for the process. In addition, there are also time limits in which certain claims must be made. After such periods expire, you may be barred from making the claim.
My spouse has made me a settlement offer. How do I know if it is fair?
Make an appointment with one of our Family Law lawyers to obtain independent legal advice about your situation before you sign any documents. It can be difficult or sometimes impossible to set aside a written agreement if you later realize that it does not meet your needs.
Do I have to go to court?
In many cases of separation and divorce, court is not required. As long as both of you are working towards a settlement that you can each live with, you will not have to go to court. Court appearances can be required in cases where one party refuses to provide financial disclosure or will not agree to a remedy to which the other person is legally entitled. The client always makes the final decision about whether or not to proceed with litigation after receiving advice regarding the potential benefits and risks. Our Family Law lawyers are highly skilled advocates with experience at all levels of Court in British Columbia.
What is mediation?
Mediation is a commonly-used dispute resolution process which has a very high rate of success. Mediation can be attended by the parties to the dispute alone, or the parties along with each of their Family Law lawyers. This process is most likely to succeed once all of the relevant disclosure has been exchanged by the parties so that they are in a position to make an informed decision. All of our Family Law lawyers are experienced with assisting clients resolve disputes through mediation.