Questioning for Family Lawyers

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Join Tiffany Paulsen, Q.C. and other seasoned litigators to break down their most effective questioning techniques, providing you with the tools, tips and strategies you need to get the most out of your next questioning. Find out how to gather information, obtain admissions, test theories, assess witness credibility and handle difficult witnesses and counsel.

Thursday, May 5
1:00 – 4:30 p.m. (ET)
Live Online

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Exemptions when Dividing Family Property: What You Need to Know

Many twists and turns are involved when dividing family property following a separation. There are special rules for dividing the family home, equitable claims that can be made, and many issues to consider. One such issue which can add complexity is exemption claims.

Exemptions can be claimed for items owned before marriage or before you became common-law spouses. Section 23 of The Family Property Act (Saskatchewan) provides for this. If you are eligible to claim an exemption, it will mean the value of that property is not subject to division (i.e. you will not have to share the value of that property with your spouse upon separation).

Here are six things you need to know about exemption claims:

  1. The definition of family property is broad under the Act. Examples of family property include items such as investments, bank accounts, land, personal property, etc. Generally, family property can be claimed as exempt if owned before the relationship.
  2. There are certain items that cannot be claimed as exempt. These include the family home and household goods which, generally, refers to property that is used for transportation (vehicles), household use (furniture, appliances, décor, etc.), and recreational use, but does not include antiques, artwork, jewelry, or anything used in a business or hobby.
  1. This means that if you owned a house prior to the relationship which your spouse moved into, in the vast majority of cases, you will be unable to claim an exemption for the house and it is presumptively equally divisible.
  2. Likewise, if you owned furniture before the relationship which you moved into your spouse’s house, you cannot claim it as exempt since it would be considered household goods.
  1. The value which can be claimed as exempt is limited to the fair market value of the property at the start of the relationship (the value at the date you are married or become common-law spouses). This means that, if the property grows in value over the course of the relationship, your spouse is, generally, entitled to share in that growth of value.  There are certain exceptions to this rule which will not be covered in this article.
  1. For example, if you owned an investment at the date of marriage and it grows by $50,000 over the course of the marriage, your spouse is entitled to share in that $50,000 growth in value.
  1. The exemption claim can be traced through the property.
  1. For example, if you were to cash in an investment worth $50,000 at the date of marriage and purchased artwork with it, the value of the artwork would be exempt up to the $50,000. Any increases in value over $50,000 over the course of the relationship would be shareable. 
  2. If you instead purchased a vehicle used for everyday driving, you would lose the exemption since that vehicle would be considered a household good.
  1. The fair market value of shares in a corporation as of the date of marriage/common-law is exempt. Any increase in value of the shares over the course of the relationship is, generally, shareable by your spouse.
  2. There are circumstances where an exemption claim will not be allowed if the Court finds that allowing the exemption would be unfair and inequitable. For example, if the property declines in value over the course of the relationship, it is generally unfair to allow the full amount of the exemption.

This article is intended to provide legal information only, not legal advice.  Dividing family property can be quite complicated. It is recommended that you seek the advice of a lawyer when considering the division of family property.

For further information, please contact:

Curtis P. Clavelle
Direct: 306-933-1341
Email: [email protected]

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Family Violence in Family Law

When asked to make a parenting order, courts will consider family violence as a factor relating to the child’s circumstances and, ultimately, their best interests. But what if the evidence is controverted?

One consideration is credibility. In assessing the appropriate parenting arrangements for a child, credibility of the witnesses is measured. The Nova Scotia Family Court, in H.L. v Z.L., 2018 NSFC 5, helpfully sets out the following factors to consider when making credibility determinations:

  1. What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate2008 NSSC 283 (S.C.);
  2. Did the witness have an interest in the outcome or was he/she personally connected to either party;
  3. Did the witness have a motive to deceive;
  4. Did the witness have the ability to observe the factual matters about which he/she testified;
  5. Did the witness have a sufficient power of recollection to provide the court with an accurate account;
  6. Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354;
  7. Was there an internal consistency and logical flow to the evidence;
  8. Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and
  9. Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

While the above factors are an excellent guide to assessing credibility, the Saskatchewan Court of Queen’s bench has acknowledged that, at the end of the day, the focus is on the best interests of the child. The question is how to safely structure parenting in view of the allegations of family violence, as opposed to whether certain, or any, events did or did not occur. Refer to Juraville v Armstrong, 2021 SKQB 73.

So, while there may be conflicting evidence between parties, particularly as it relates to family violence, it remains possible to fashion a parenting plan for the child that will compliment their best interests and safeguard their mental, emotional, physical and spiritual wellbeing.

Contacting a Lawyer on this Subject

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Kelsey Dixon at 1-306-933-1359 or [email protected] to learn more.

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Can I quit my job to avoid paying my ex child support?

The answer is no, probably not. If a payor is seeking to quit their job simply to avoid paying child support, this is likely a non-starter.

However, if a payor’s reduction in income falls within one of the reasonable exceptions, and evidence supporting this is provided, a payor may avoid having income imputed to them for the purposes of support.

However, if a child support payor’s choice to quit their job thereby reducing their income, does not fit within an exception, the payor risks the Court imputing income to them for the purposes of support if they are found to be intentionally underemployed or unemployed.

The Federal Child Support Guidelines prescribes at section 19 that the Court has discretion to impute income where a parent is intentionally under-employed or unemployed.

The Algner v Algner, 2008 SKQB 132 decision of Madam Justice Ryan-Froslie (as she was then) remains the leading decision on this issue and has clearly set out the guiding principles respecting the imputation of income.

That case notes that a parent has an obligation to seek employment commensurate with their ability to earn income, and as a general rule, a parent cannot avoid his or her child support obligations by a self-induced reduction of income. However, parents are entitled to make employment or career changes that may impact their ability to pay child support so long as the decision is reasonable in the circumstances.

The first stage of the analysis is determining whether the payor is intentionally under-employed, and then, to determine whether any of the exceptions as set out at section 19(1)(a) of the Guidelines are applicable, namely, whether the under-employment or unemployment is required by reason of:

(i) the needs of a child of the marriage;

(ii) the needs of any child under the age of majority;

(iii) the reasonable educational needs of the spouse; or

(iv) the reasonable health needs of a spouse.

If the Court determines that a parent is intentionally under-employed, the onus then shifts to the parent earning less than they are capable of to demonstrate that their choice was reasonable in the circumstances. The Court does not need to first find that the parent is intentionally avoiding their child support obligation, only that it was a voluntary choice to become under-employed or unemployed.

A number of scenarios could be considered to fall within the exceptions when parties voluntarily leave their employment.

Given the limited scope of this article, I will touch on the health and reasonable educational needs exceptions.

If a health reason, namely the reasonable health needs of a spouse is being relied upon to justify a reduction in income and lower support, the Court needs to be satisfied that a career change is reasonable and require cogent evidence from a medical specialist establishing that the payor cannot do the work they did prior to quitting their employment.

It is critical that a medical specialist provide this evidence, as the Court in Clement v Bridges, 2013 SKQB 356 gave little weight to a chiropractor’s opinion as to whether the payor could continue to work on oil rigs, indicating that chiropractors are not medical doctors, nor are they qualified medical specialists and income was imputed to the payor.

The Court considered the reasonable educational needs exception in the Hinz v Hinz, 2017 SKQB 248 and D.A. v S.A., 2017 SKQB 108 decisions. In these cases, the Court found that a parent who decided to further their education despite having secure, fulltime employment with respectable income, that the practical implication on employment choices and salary was remote and modest. Accordingly, in finding the educational pursuit was not necessary nor reasonable for a parent to reduce their income to pursue this opportunity when there were child support obligations, the Court imputed income to the payors.

Accordingly, there is a wide array of facts that may support a reduction in income, provided it is reasonable and evidence in support is furnished. If you are the recipient of support or the payor of support and seek to reduce your obligations, I recommend you seek legal advice with respect to your family law matter.

Contacting a Lawyer on this Subject

Siobhan Morgan’s primary focus rests on family law and wills and estates. For more information on this subject, contact Siobhan at 1 306 933 1308.

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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Enforceability of Parenting Agreements by the Court and Police

Is my parenting agreement enforceable by the Court or by the police?

The short answer is no – well, could it be?!

Will the Court enforce my parenting agreement?

Parenting agreements between parties are relevant to the determination of children’s best interests but they are not binding on the Court. This principle has been set out by the Supreme Court of Canada and upheld in decisions of our Court of Queen’s Bench, a few examples of which are as follows: Gordon v Goertz, 1996 CanLII 191 (SCC), Jensen v Walters, 2016 SKQB 267, Lloyd v Lloyd, 2018 SKQB 116, Gudmundson v Fisher, 2018 SKQB 264.

That being said, a parenting agreement is relevant and can speak to the parties’ intentions respecting the parenting of their child or children.

Whether the Court adopts and orders the terms provided for by an agreement really comes down to the weight the Court affords a parenting agreement.

The weight the Court gives an agreement is dependent on a number of factors, including how the agreement was reached, the circumstances of negotiation and signing the agreement, the date of the agreement,  whether any changes have occurred since the agreement was reached, whether the parties had legal advice, and whether the terms of the agreement were followed, and whether the terms of the agreement appear to be in the best interests of the child now.

Meaning that if a parent applies for parenting time or to “enforce” their agreement or brings an application for parenting time that differs from what is set out in the agreement, the Court will consider the agreement along with the above-noted factors and will determine whether the parenting terms as set out in the agreement are in fact in the child’s best interests and make an order as it sees fit, as guided by the best interests of the children.

Will the police enforce my parenting agreement?

I think it is fair to say that the police do not want to become involved in parenting disputes. Before turning to lawyers, many parents first ask the police for assistance in having their children returned. However, the police do not enforce parenting agreements and will routinely decline requests for assistance if the child is simply with the other parent, even if it is contrary to the terms of your agreement.

The Court has jurisdiction under The Children’s Law Act, 2020 to order police enforcement clauses and has done so in situations where there is demonstrated evidence that a party refuses to comply with a parenting order of the Court. Again, not an agreement, but an actual order of the Court.

Involvement of the police in parenting matters is far from ideal for children, however, it is a remedy that is available through the Act and can become necessary in parenting disputes to assist with the return of children.

Each parenting arrangement is unique. I recommend you seek legal advice with respect to your family law matter.

Contacting a Lawyer on this Subject

Siobhan Morgan’s preferred practise area is Family Law. For more information on this subject, call 306-933-1308 or email [email protected]

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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What You Need to Know About New Assisted Reproduction Laws

The Children’s Law Act, 2020 has recently come into place in Saskatchewan. This has updated the laws relating to decision-making and parenting time of children.  However, this article focuses on the changes made to assisted reproduction in Saskatchewan.

The new updates are a welcome change, revising our archaic former act. Under the old act I had clients attend clinics in British Columbia so that the surrogacy agreements could be governed by  British Columbia laws.  As an aside, there is also federal legislation and regulations dealing with assisted reproduction.

Here are nine things you need to know about the new Act:

  1. Assisted reproduction is broadly defined as a method of conceiving other than by sexual intercourse.
  2. The new Act is more inclusive, removing references to “mother” and “father” and instead referring to “parents” only. It further contemplates a variety of parental arrangements and agreements which can be made.
  3. In order to qualify as a surrogate, the person carrying the child must have the intention, at the time of conception, to relinquish parental rights to one or more other persons.
  1. This makes it vital that a surrogacy agreement is entered prior to conception which clearly specifies the surrogate’s intention to relinquish parental rights. All parties must also receive independent legal advice.
  2. A surrogate is not considered a birth parent where they have relinquished entitlement to parentage pursuant to the Act (more on this in part 7 below). If the surrogate has not relinquished entitlement, they will be presumed to be the parent of the child.
  1. A sperm donor is not recognized to be the parent of a child conceived through insemination. Therefore, if a sperm donor intends to be the parent of the child, a parentage agreement would be required. Oddly, the Act is silent in this regard respecting ova donors.
  2. If the birth parent of a child conceived through assisted reproduction, not including a surrogate, has a spouse at the time of conception, that spouse is automatically recognized to be a parent of the child, unless the spouse does not consent to be a parent of the child.
  3. Where there is an agreement specifying the parentage of a child, not including a surrogacy agreement (e. there is an ova or sperm donation agreement in place), upon the child’s birth, they are deemed to be the child of the intended parents under the agreement.
  4. However, for surrogates, not only must there be a surrogacy agreement in place prior to conception, the surrogate must also relinquish their entitlement to parentage of the child in the specified form after birth. This cannot take place earlier than three days after birth.  Presumably, this is to protect the surrogate and provide them a final chance to claim parental rights, although it certainly complicates things for the intended parents and could lead to messy situations.  The parents must then apply for an order declaring them to be the parents of the child, which must be made before the child is 90 days old.
  1. If the surrogate refuses to relinquish parental rights, the intended parents can apply to the court for an order declaring parentage.
  1. Surrogacy agreements are not enforceable at law, but can be used as evidence of a person’s intention to be the parent of the child, and the surrogate’s intention to not be a parent of the child.
  2. In determining bloodlines, if the person(s) who donated sperm, ova, or an embryo had no intention at the time of conception to be a parent of the child, they are not considered a blood relation to the child. For example, this would mean the child would be ineligible to inherit from the donor if they died without a Will in place.

This article is intended to provide legal information only, not legal advice.  Assisted reproduction matters can be quite complicated, and can lead to unintended results if not completed properly.  It is recommended you seek the advice of a lawyer when considering entering such an agreement and exploring your options.

For further information, please contact:

Curtis P. Clavelle
Direct: 306-933-1341
Email: [email protected]

Area of ExpertiseFamily Law