Wednesday, November 15, 2006

Legal Aid Expands Coverage in Family Cases

My first call of the day is from 33 year-old woman named Beverly who lives in a small northern community.

Two weeks ago, Beverly left her husband, Kevin, after ten years of marriage, and now lives in a rented apartment. They do not have any children. While Kevin was not physically or verbally abusive of her, Beverly is worried that he may try to take financial advantage of her.
She has two main concerns. First, the two of them bought a house during their marriage, but the legal title to the house is Kevin’s name alone. Beverly has overheard him talking about selling the house several times, and she has heard rumours in town that he’s planning to do so very soon. She is worried that he will sell the house without her knowledge and just take off with the money. She’s also concerned that Kevin is moving money around between bank accounts, trying to hide money and investments he had, to make it look like there is less property to divide between the two of them.

What can she do to protect herself?

As for the house, I confirm that since she is not “on title” to the house, Kevin could sell the property without her knowledge or consent. However, there is a straightforward, and very affordable, step that Beverly can take to prevent this from happening, and she should do it as soon as possible.

Beverly can file an application under section 2 of the Land (Spousal Protection) Act. (The full text of this act is available at http://www.qp.gov.bc.ca/statreg/stat/L/96246_01.htm.) The application is made to the Land Title Office, not to a court. She does not need to hire a lawyer to make this application, but she will need to meet briefly with a lawyer, notary or commissioner of oaths to swear an affidavit. Once the application is filed, it will act as a sort of lien against the house, and prevent Kevin from selling the house without her permission.

I explain to Beverly that she will need to fill out two forms, both of which are available online. I refer Beverly to the Forms Regulation under the Land (Spousal Protection) Act, available at http://www.qp.gov.bc.ca/statreg/reg/L/85_97.htm She will need to fill out an application in Form B, and an affidavit in Form A, and file them with the Land Title Office. In these forms she will need to provide the full legal description of the family home. She can get this from her local city hall by giving the street address to the staff there, who can then give her the official legal description. Also, Beverly should attach a copy of her marriage certificate to her form B application, if possible.

Once the forms are completed, Beverly can file them directly with the local Land Title Office or the local Government Agent’s office, or she can hire a land title search agent to file the documents for her. There is a filing fee payable to the Land Title Office, but it’s only $2.50.

As for Beverly’s concern about Kevin trying to hide money and other assets, I explain that the B.C. Supreme Court can make orders restraining him from doing that, but the Provincial Court cannot make orders concerning property in family cases.

Since Beverly lives on a low income, I suggest that she consider applying for legal aid. As of November 1, 2006, the Legal Services Society, a.k.a. legal aid, made some changes to its family law coverage policy. These changes allow legal aid staff more discretion to refer someone to a lawyer in cases where there are no concerns with domestic violence, abduction or child safety. If Beverly is financially eligible for a legal aid assistance, then her application will be reviewed to see if her case has enough priority to be referred to a lawyer.

I explain that for legal aid to help with property division issues, there must be at least $50 000 of equity in the family assets. If there is, and there is a clear threat that Kevin may hide or sell assets, legal aid may agree to pay for a lawyer to apply to Supreme Court on her behalf for a court order preventing Kevin from selling or hiding assets. Legal aid may also authorize that lawyer to take other steps on her behalf.

Also, legal aid may issue Beverly a “dispute resolution referral.” To decide whether Beverly is eligible for such a referral, legal aid would consider several factors, including whether she is able to resolve her legal problem using other resources such as family duty counsel, whether there would be a significant injustice to her if legal assistance were not available to her, and whether resolving her legal problem would make a significant difference to her ability to be self-supporting. Legal aid would also consider whether she has any particular barriers to trying to resolve her legal problem without a lawyer’s help. Such barriers could include language or cultural barriers or a physical or mental health condition that affect her capacity to resolve her legal problem without a lawyer.

If legal aid does issue Beverly a dispute resolution referral, it will pay a lawyer to try to mediate or negotiate with Kevin to see if the ex-couple can to an agreement on how to divide the property. If an agreement can’t be reached, the lawyer can also help Beverly by preparing court documents for filing in the Supreme Court, advising her about her options, and attending a judicial case conference with her, if needed. Furthermore, if the lawyer needs to appear in court to resolve her issues, the lawyer can ask legal aid if they will approve that service as well.

Beverly thanks me for my help and we agree that she can call us again if she has any more questions in the future.

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